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November 17, 2015 Agenda
tru�Rltl �'� � k, Tuesday, November 17, 2015 City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com 2:00 PM Work Session Room & Council Chambers A quorum of the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, November 17, 2015 at 2:00 p.m. at City Hall, 215 E. McKinney Street, Denton, Texas. Council Member Kevin Roden, District 1, will participate by videoconference during the Open Meeting to be held in the City Council Chambers beginning at 6:30 p.m. The City Council Work Session will be held 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 November 17, 2015. 3. Work Session Reports A. ID 15 -989 Receive a report, hold a discussion, and provide staff direction regarding the City of Denton Solid Waste & Recycling Department proceeding with a proposed multi -year landfill mining capital project. Attachments: Exhibit 1- Landfill Minning Presentation B. ID 15 -1037 Receive a report from DME staff, hold a discussion, and offer staff guidance regarding potential utilization of Gas Insulated technology within DME electric utility substations. C. ID 15 -1220 Receive a report, hold a discussion, and give staff direction regarding a proposed commercial development on the west side I -35 E, north of Wind River Lane, in south Denton that includes a Buc -ee's Travel center as an anchor and a potential incentive for the project. Attachments: Exhibit 1 - Preliminary Staff Report Exhibit 2 - Aerial Map Exhibit 3 - Zoning Map Exhibit 4 - Future Land Use Map Exhibit 5 - Preliminary Concept Site Plan Exhibit 6 - Preliminary Elevations Exhibit 7 - Public Infrastructure Costs City ofDenton Page I Printed on 1111212015 City Council Meeting Agenda November 17, 2015 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 -1035 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 and discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests located along both the east and west sides of South Mayhill Road between Spencer Road to the north and Quailcreek and Old Edwards Road to the south in the City of Denton, Denton County, Texas; where discussions had, deliberation, and direction given, by the Denton City Council in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; discussion of these legal matters in an open meeting 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. [Pockrus to Mayhill Transmission Route] B. ID 15 -1178 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 located along the east side of Bernard St. between Eagle Drive to the north and Collins Street to the south, in the City of Denton, Texas; where discussions had, deliberation, and direction given in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; where 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] C. ID 15 -1198 Consultation with Attorney's - Under Texas Government Code, Section 551.071. Consult with the City's attorneys regarding legal issues associated with the revocation of an SUP for Akers Towing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas City ofDenton Page 2 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 Disciplinary Rules of Professional Conduct of the State Bar of Texas. D. ID 15 -1218 Deliberations regarding real property under Texas Gov't Code Section 551.072; Consultation with Attorneys under Texas Gov't Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property located at 301 E. McKinney, Denton, Texas where deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. 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. E. ID 15 -1219 Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding economic development issues regarding a proposed amendment to the economic development program grant agreement between the City of Denton and WGBP Investments, LTD. This discussion shall include commercial and financial information the City Council has received from WGBP Investments, LTD, a business prospect 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; deliberate the amendment of the economic development program grant agreement between the City of Denton and WGBP Investments, LTD. F. ID 15 -1221 Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding a proposed economic development program grant agreement between the City of Denton and BUC -EE's, LTD. This discussion shall include commercial and financial information the City Council has received from BUC -EE's, LTD, a business prospect 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; deliberate the economic development program grant agreement between the City of Denton and BUC -EE's, LTD. City ofDenton Page 3 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071- 551.086 OF THE TEXAS OPEN MEETINGS ACT. Following the completion of the Closed Meeting, a quorum of the City Council of the City of Denton, Texas will convene in an Open Meeting in the City Council Chambers. Council Member Kevin Roden, District 1, will participate by videoconference during this Open Meeting. 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 -1085 Presentation of the National Procurement Institute 2015 Achievement of Excellence in Procurement Award to the City of Denton Materials Management staff. 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 -1112 Monica Jones regarding Animal Services, Code Enforcement, forged names and grand larceny. 2. ID 15 -1118 Christopher Klabunde regarding Johnson's Backyard Garden Workshare Program and farm update. 3. ID 15 -1119 Ryan Crocker regarding farming the City parks - urban farming in Denton. 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. 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 City ofDenton Page 4 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — JJ). 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 — JJ 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 -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 B. ID 15 -974 Consider approval of a resolution supporting the tax credit application to the Texas Department of Housing and Community Affairs (TDHCA) for the McKinney Denton Apartments Project; and providing for an effective date. Attachments: Exhibit 1 - Resolution C. ID 15 -1022 Consider adoption of an ordinance amending Chapter 23 of the City of Denton Code of Ordinances by adding Article V "Non- Consent Towing;" providing a severability clause; providing a savings clause; providing for a penalty not to exceed $ 500 for violations of this ordinance; and providing an effective date. Attachments: Exhibit 1 Ordinance D. ID 15 -1023 Consider adoption of an ordinance of the City of Denton, Texas, establishing fees for non - consent towing within the City of Denton pursuant to Chapter 23, Article V of the Code of Ordinances of the City of Denton, Texas, titled Non - Consent Towing; providing that a schedule of fees shall be maintained on file in the Office of the City Secretary; providing a savings clause; providing a severability clause; and providing an effective date. Attachments: Exhibit 1 Ordinance E. ID 15 -1044 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, incorporated for providing aid to the City of Denton Police Department in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non - offending family members; providing for the expenditure of funds in the amount of $105,891.00 therefor; and providing for an effective date. Attachments: Exhibit 1 Ordinance and Contract F. ID 15 -1081 Consider adoption of an ordinance authorizing the City Manager to execute an City ofDenton Page 5 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 agreement between the City of Denton and the Denton Air Fair, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($11,290 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance G. ID 15 -1082 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($16,572- Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance H. ID 15 -1083 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Market, Inc. (PY2016)providing for the payment and use of hotel tax revenue; and providing an effective date. ($10,500 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance L ID 15 -1084 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($25,000 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance J. ID 15 -1089 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($1,117,395 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance K. ID 15 -1090 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton County, Texas (Denton County Office of History and Culture) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($150,000 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance L. ID 15 -1091 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($16,086 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance M. ID 15 -1092 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation City ofDenton Page 6 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($91,309 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance N. ID 15 -1093 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($129,852 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance O. ID 15 -1094 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($7,700 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance P. ID 15 -1096 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d /b /a Denton Main Street Association (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($25,369 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance Q. ID 15 -1097 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($125,000 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: R. ID 15 -1098 Attachments: Exhibit 1 - Ordinance Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tgas Storytelling Association, Inc. (PY2016) for the payment and use of hotel tax revenue; and providing an effective date. ($52,747 - Hotel Occupancy Tax Committee recommends approval 3 -0) Exhibit 1 - Ordinance S. ID 15 -1099 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($8,269 - Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance T. ID 15 -1100 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Kiwanis Club of Denton, Breakfast City ofDenton Page 7 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 (Turkey Roll Bicycle Rally) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($4,850- Hotel Occupancy Tax Committee recommends approval 3 -0) Attachments: Exhibit 1 - Ordinance U. ID 15 -1130 Consider approval of a resolution to the City Council of the City of Denton, Texas authorizing the filing and acceptance of a contract with the Solid Waste & Recycling Department (SW &R) and Mill Branch, LLC, for the SW &R to purchase mitigation credits to offset impacts to the Waters of the United States in accordance with the U.S. Army Corps of Engineers Section 404 permit and the Texas Commission on Environmental Section 401 certification requirements, in the preparation, development and submittal of a permit application for lateral expansion and associated services pertaining to the City of Denton Landfill (MSW Permit 41590a); authorizing the expenditure of funds in the stated amount of $249,690, and providing an effective date. Attachments: Exhibit -1 US Army Corp of Engineers Public Notice Exhibit -2 Mill Branch LLC Sales Agreement Exhibit -3 Resolution V. ID 15 -1136 Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment (UAAA) No. 002 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $1,627,185.71; 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 the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1 - Ordinance Exhibit 2 - Utility Adiustment Agreement Amendment W. ID 15 -1149 Consider approval of the minutes of September 1, September 15, October 5, October 6, O, Attachments: Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 -tober 13, and October 20, 2015. - September 1, 2015 AM Minutes - September 1, 2015 PM Minutes - September 15, 2015 Minutes - October 5, 2015 Minutes - October 6, 2015 Minutes - October 13, 2015 Minutes - October 20. 2015 Minutes X. ID 15 -1152 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 a motor grader, roller, and backhoe for City ofDenton Page 8 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 the City of Denton Street Department; and providing an effective date (File 598'1- awarded to Holt CAT in the amount of $435,717.29). Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Standardization Memo Exhibit 3- Ordinance Y. ID 15 -1153 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the acquisition of two (2) Pierce Velocity Pumper Fire Engines for the City of Denton Fire Department; and providing an effective date (File 5987- awarded to Siddons -Martin Emergency Group, LLC in the amount of $1,180,082). Attachments: Exhibit 1- Authorized Dealer Letter Exhibit 2- Comparison and Quotes Exhibit 3- Ordinance Z. ID 15 -1154 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 two (2) flushing trucks for the City of Denton Wastewater Collections Department; and providing an effective date (File 5988- awarded to Rush Truck Center in the amount of $486,061.25). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Flushing Truck Comparison and Quotes Exhibit 2- Hotshot Truck Comparison and Quotes Exhibit 3- Peterbilt Standardization Exhibit 4- Public Utilities Board Minutes Exhibit 5- Ordinance AA. ID 15 -1155 Consider adoption of an ordinance ratifying the expenditure of funds by the City Manager for the emergency purchase and installation of a twenty (20) ton heating, ventilation and air conditioning (HVAC) unit to provide cooling for critical Denton Municipal Electric and Technology Services operations and 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 5984- awarded to Tech Plan, Inc. in the amount of $62,690). Attachments: Exhibit 1 -Quote Exhibit 2- Declaration of Emergency Form Exhibit 3- Ordinance BB. ID 15 -1156 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 engineering and right -of -way acquisition services associated with the City of Denton FM 2181 Utility Relocations Project; providing for the expenditure of funds therefor; and providing an effective date (File 5973- awarded to Freese and Nichols, Inc. in an amount not -to- exceed $1,072,977). The Public Utilities Board City ofDenton Page 9 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 recommends approval (6 -0). Attachments: Exhibit 1 -PUB Draft Minutes Exhibit 2- Ordinance Exhibit 3- Contract CC. ID 15 -1157 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the construction of the Mayhill Road Utility Improvements for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 59'1'1- awarded to Canary Construction, Inc. in the amount of $114,442). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Pricing and Evaluation Sheet Exhibit 2- Public Utilties Board Minutes Exhibit 3- Ordinance DD. ID 15 -1158 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of four (4) side load and two (2) front load refuse truck bodies for the City of Solid Waste Department, which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5978- awarded to DaDee Manufacturing, LLC in the amount of $794,156.92). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Standardization Memo Exhibit 3 -Sole Source Letter Exhibit 4- Public Utilities Board Minutes Exhibit 5- Ordinance EE. ID 15 -1160 Consider approval of a resolution of the City of Denton, Texas affirming its support of the Texas Department of Transportation's planned widening of FM -426, (McKinney Street) at the earliest opportunity; and providing an effective date. The Mobility Committee recommends approval (3 -0). Attachments: Exhibit 1 RTC Letter Exhibit 2 Resolution FF. ID 15 -1161 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of one (1) rear load refuse truck body for the City of Solid Waste Department, 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 5979- awarded to McNeilus Truck and Manufacturing Co. in the amount of $78,148). The Public Utilities Board recommends approval (6 -0). City of Denton Page 10 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 Attachments: GG. ID 15 -1163 Attachments: HH. ID 15 -1169 Attachments: IL ID 15 -1170 Attachments: JJ. ID 15 -1215 Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Standardization Memo Exhibit 3 - -Sole Distributor Letter Exhibit 4- Public Utilities Board Minutes Exhibit 5- Ordinance Consider adoption of an ordinance accepting competitive proposals and awarding a contract for purchase and installation of trees for the City of Denton parks, medians, right -of -ways, public buildings, and other City departments, as needed; providing for the expenditure of funds therefore; and providing an effective date (RFP 5933- awarded to Fannin Tree Farm Sales, LLC in the (3) year not -to- exceed amount of $450,000). Exhibit 1- Evaluation and Ranking Sheet Redacted Exhibit 2- Ordinance Exhibit 3- Contract Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a 2nd Amendment to a contract with Ultimate CNG, LLC. for the purchase of temporary mobile compressed natural gas (CNG); providing for the expenditure of funds therefor; and providing an effective date (File 5464- providing for an additional expenditure amount of $1,300,000 with the total contract amount not -to- exceed 1,895,000). The Public Utilities Board recommends approval (6 -0). Exhibit 1 -Staff Memo Exhibit 2- Public Utilities Board Minutes Exhibit 3- Ordinance Exhibit 4- Second Amendment Contract Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Concrete Crushing Services for the Citv of Denton Department; providing for the expenditure effective date (RFP 5910- awarded to Big year not -to- exceed amount of $300,000). approval (6 -0). Exhibit 1- Pricing and Evaluation Sheet Exhibit 2 -PUB Draft Minutes Exhibit 3- Ordinance Exhibit 4- Contract Solid Waste of Tunas mereior; ana providing an City Crushed Concrete in the three (3) The Public Utilities Board recommends Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the city manager, or his designee, to execute an agreement between the City of Denton, Denton Independent School District ( "DISD ") and Zayo Group, LLC ( "Zayo ") to allow Zayo access to the City's Right -of -Way where DISD fiber conduit is located for the limited purpose of inspecting and proofing DISD conduit and indemnifying and holding the City harmless; and declaring an effective date. Exhibit 1 Ordinance and Agreement City of Denton Page 11 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -1159 Consider approval of a resolution creating an ad hoc City Council Committee to consider and review operations, procedures, policies, regulations and naming of the City of Denton Community Event Center to be located at 121 Exposition Street, Denton, Texas and to advise the City Council with regard to these matters; and providing an effective date. Attachments: Exhibit 1 Resolution Community Event Center B. ID 15 -1135 Consider nominations /appointments to the City's Boards, Commissions, and Council Committees: Parks, Recreation, and Beautification Board; Traffic Safety Commission; and City of Denton Community Event Center Committee. 6. PUBLIC HEARINGS A. Z15 -0015a Hold a public hearing and consider a rezoning of approximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, approximately 2,100 feet northwest of Post Oak Drive. The Planning and Zoning Commission recommends approval of this request (7 -0). Attachments: Exhibit 1 -Staff Analysis Exhibit 2- Aerial Map Exhibit 3- Zoning Map Exhibit 4- Future Land Use Map Exhibit 5 -RCC -D Permitted Uses Exhibit 6 -PD -12 Commercial Permitted Uses Exhibit 7 -PD -12 Commercial General Regulations Exhibit 8- Applicant Narrative Exhibit 9- Public Notification Map Exhibit 10- October 7, 2015 Planning & Zoning Commission Meeting Minutes Exhibit 11 -Draft Ordinance B. Z15 -0024a Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a change in the zoning classification from a Neighborhood Residential Mixed Use (NRMU) District and use classification to a Neighborhood Residential 4 (NR -4) District and use classification on approximately 20.0 acres. The subject property is generally located on the south side of East McKinney Street (FM426), approximately 2,330 feet east of Orr Road, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of this request (7 -0). City of Denton Page 12 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 Attachments: Exhibit 1 -Staff Analysis Exhibit 2 -Site Location - Aerial Map Exhibit 3- Zoning Map Exhibit 4- Future Land Use Map Exhibit 5- Permitted Uses NRMU Exhibit 6- Permitted Uses NR -4 Exhibit 7- Public Notification Map and Responses Exhibit 8- October 7, 2015. Planning and Zoning Commission Meeting Minutes Exhibit 9 -Draft Ordinance C. ID 15 -1115 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 Bowling Green Park for the purpose of installing and maintaining a detention pond outfall for the Fireside Development Project; providing for a notice by the City of Denton, Texas, of non -park use for installation and maintenance of a detention pond outfall and reservation of drainage easement in the event of sale of park; and providing an effective date. The Parks, Recreation and Beautification Board recommends approval (5 -0). Attachments: Exhibit 1 - Excerpt of Park and Recreation Board Minutes 9 -14 -15 Exhibit 2 - Legal Description and Survey Exhibit 3 - Chapter 26 Legal Ad Notification Fireside Exhibit 4 - Ordinance Bowling Green Park - Fireside Development Project - Ch D. Z15 -0025a Hold a public hearing and consider adoption of an ordinance regarding a rezoning of approximately 15.811 acres from of a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located on the southwest corner of N I -35 and Barthold Road. The Planning and Zoning Commission recommends approval of the request (7 -0). Attachments: Exhibit 1 -Staff Analysis Exhibit 2- Aerial Map Exhibit 3- Zoning Map Exhibit 4- Future Land Use Map Exhibit 5 -RCC -N Permitted Uses Exhibit 6 -EC -C Permitted Uses Exhibit 7- Applicant Narrative Exhibit 8- Public Notification Map and Responses Exhibit 9- October 7, 2015 Planning & Zoning Commission Meeting Minutes Exhibit 10 -Draft Ordinance E. ID 15 -1073 Hold a public hearing and consider an ordinance revoking a Specific Use Permit dated August 5, 2014, allowing a wrecker service and impound lot on property located in an Employment Center Industrial (EC -I) zoning and land use district on City of Denton Page 13 Printed on 1111212015 City Council Meeting Agenda November 17, 2015 approximately 1.3 acres, generally located south of Smith Street, east of Dallas Drive, and north of Teasley Lane; and providing an effective date. Attachments: Exhibit 1- Ordinance 2014 -240 Exhibit 2 -Akers Towing Timeline Exhibit 3 -Akers Towing Letter dated August 24, 2015 Exhibit 4- Informal Staff Report No. 2014 -087 Exhibit 5 -Draft Ordinance 7. 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 -1107 Willie Hudspeth regarding City Hall. 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. B. Possible Continuation of Closed Meeting topics, above posted. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of , 2015 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM / 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 14 Printed on 1111212015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -989, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling ACM: Jon Fortune Date: November 17, 2015 SUBJECT Receive a report, hold a discussion, and provide staff direction regarding the City of Denton Solid Waste & Recycling Department proceeding with a proposed multi -year landfill mining capital project. BACKGROUND The Solid Waste & Recycling Department staff has researched landfill mining techniques and projects to determine the feasibility of mining the initial, Pre - Subtitle D section of the landfill which does not have a composite bottom liner meeting current regulatory requirements. Landfill mining is not a new approach, but it is not often performed. There are a minimal number of landfill mining operations that have been conducted within the United States. Globally there have been more landfill mining projects performed in Europe, mainly in Austria and Germany. The landfill area proposed for the initial mining project is the disposal area where waste was buried from 1985 to 2000. This is the area generally east of the existing landfill disposal area, consisting of 32 acres, which was permitted under previous state rules. The federal Resource Conservation and Recovery Act (RCRA), which focuses on the management of non - hazardous municipal solid waste and non - hazardous industrial waste, was amended in the early 1990s to strengthen landfill design and operation requirements to provide improved protection of the environment and public health. It required all landfills to have a composite bottom liner which includes both clay and High Density Polyethylene (HDPE) geo- membrane components. The primary purpose of this improved landfill liner system was to isolate the landfill's contents from the environment and, therefore, to protect the soil and ground water from pollution originating within the landfill. Denton's proposed initial mining area received waste prior to this RCRA regulatory requirement and does not have the HDPE liner. The basis for considering landfill mining of this less protective lined area are: • the elimination of a potential contamination source and its long -term environmental liability, • the excavation of the site for reutilization of landfill disposal space, • the recovery of the recyclable materials and products from the site, • the savings of cell development costs, • the availability of additional cubic yardage for disposal with no additional closure and post- closure expenditure requirement, • the reduced long -term post- closure monitoring costs City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -989, Version: 1 Core samples of waste were initially taken of this landfill area in 2010, and a materials characterization was developed to determine the economic viability of mining this site. Materials that are recoverable and marketable include soils, concrete (for aggregate sales), metals, plastics, natural timber, processed lumber, and fiber materials. The initial results indicated that the mining project was feasible. The cost of mining and reusing this space is slightly less than developing a new area. Since the previous landfill mining projects in Texas were primarily waste relocation projects and not reclamation projects, our staff and our engineering consultant met with the Texas Commission on Environmental Quality (TCEQ) to discuss our proposed project. The TCEQ staff was supportive of our project concept as it would set an example for future landfill mining projects in the future. Additional testing and waste characterization was conducted to meet the state's requirements and a permit modification application package was developed to secure authorization for the project. Staffing has been approved in the FY 2015 -16 Operating Budget. Funding for equipment and the mining of the initial phase is in the Solid Waste Fund's current and future Capital budgets. Equipment purchases have begun and the mining is expected to start in the summer of 2016. OPTIONS The City Council has previously recommended the Solid Waste & Recycling Department move forward with the landfill mining project. ESTIMATED SCHEDULE OF PROJECT Project is scheduled to begin in the summer of 2016 and will be completed in the next several years. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff has provided project information with the Public Utilities Board during budget and Capital project discussions. FISCAL INFORMATION Project costs are provided through the Department's operational and Capital budgets. EXHIBITS 1. Landfill Mining Presentation Respectfully submitted: V. Kemler General Manager, Solid Waste & Recycling Services Prepared by: S. Lebsack Development & Administrative Manager, Solid Waste & Recycling Services City of Denton Page 2 of 2 Printed on 11/12/2015 hr IMIWV V-4 O O O J2 • IY 3 R wal 4" N r- 0 (D IX 0) X RS tlf plo ui sdnojB alseM dsg .0, 9 m dSS cn E c a 4) M x (D 0 DIE J U) CL I C 0 U) (D I > 46 0— 0 plo ui sdnojB alseM dsg .0, 9 m dSS cn u hf) m (U 4-J m E 4- C 0 -C 4-J L- 0 (U 4-0 4- 0 c 0 4-0 x 4-J .01 m • • • • • • o+o; QQ +61 u U M h^^ IMIWV �V-4 O S= N o On oo n O M c� O 4 .= A A C� V o+o; QQ +61 Wl %ji Imp / In elp 'III, �lj 0 T.7 • e �P -55 31 CL ti w 40 • O (A O +J 0 (U 14 tu tu V) 0 d ZJ csi 0 ' 4� r� V bJ0 r� t V LM m i • m 4) LM V/ V O LL h u V � Q 4-a U) 45 12 O (D cr -0 C O N � N .� L C: O -0 O O C: 0n `V �J E m � •_� O L C: O _ U -�5 E cm N CL O :3 Q >% Q O .. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1037, Version: 1 Agenda Information Sheet DEPARTMENT: DME ACM: Howard Martin, 349 -8232 Date: December 1, 2015 SUBJECT Receive a report from DME staff, hold a discussion, and offer staff guidance regarding potential utilization of Gas Insulated technology within DME electric utility substations. BACKGROUND DME's planned Capital Improvement Projects to upgrade the City of Denton's aging transmission and distribution electric utility infrastructure include the construction and operation of electric utility substations. In certain situations DME has encountered special constraints due to land limitations. In some of these situations, it may be more beneficial to employ space saving Gas Insulated technology for substations rather than traditional air insulated systems. The purpose of this report is to share information learned about Gas Insulated substations systems. Respectfully submitted: Phil Williams DME, General Manager Prepared by: Smith Day Compliance Manager City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -1220, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services /Economic Development CM/ ACM: Jon Fortune Date: November 17, 2015 SUBJECT Receive a report, hold a discussion, and give staff direction regarding a proposed commercial development on the west side I -35 E, north of Wind River Lane, in south Denton that includes a Buc -ee's Travel center as an anchor and a potential incentive for the project. BACKGROUND A commercial development anchored by a Buc -ee's Travel Center is proposed for a site in south Denton. The proposal would include an approximately 53,000 square foot retail store, fuel sales, a car wash, and peripheral development along I -35E for future development. The main retail store and the associated fuel sales would be open 24 hours a day, 7 days a week, but the facility would not cater to semi - trucks. The City Council is contemplating an incentive for the project in order to reimburse the developer for public infrastructure improvements and other neighborhood /public amenities. A Neighborhood Meeting was held on November 11, 2015 where approximately 100 citizens attended to learn about the project, ask questions, and express their concerns. This Work Session is being held to provide additional information to the City Council about the project, to discuss considerations being given to the neighborhood to mitigate the impact of the project, and to discuss the purpose and structure of a proposed incentive. The project owner will be present to ask questions and discuss the project in more detail. Additionally, there is a Closed Session scheduled to discuss more details and options regarding the proposed incentive. The incentive will be brought back to the City Council for consideration on December 1, 2015. PRIOR ACTION/REVIEW (Council, Boards, Commissions) • November 10, 2015 - City Council Closed Session discussion on incentives October 30, 2015 - City Council Closed Session discussion on incentives October 20, 2015 - City Council Closed Session discussion on incentives October 13, 2015 - City Council Closed Session discussion on incentives September 22, 2015 - Economic Development Partnership Board recommended approval of an incentive for the project City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1220, Version: 1 EXHIBITS 1 - Preliminary Staff Report 2 - Aerial Map 3 - Zoning Map 4 - Future Land Use Map 5 - Preliminary Concept Site Plan 6 - Preliminary Elevations 7 - Public Infrastructure Costs Respectfully submitted: Aimee Bissett Director of Development Services City of Denton Page 2 of 2 Printed on 11/12/2015 Exhibit 1 - Preliminary Staff Report Planning Report Item 44 BACKGROUND: A commercial development anchored by a Buc -ee's Travel Center is proposed for a site in south Denton. The proposal would include an approximately 53,000 square foot retail store, fuel sales, a car wash, and peripheral development along I -35E for future development. The main retail store and the associated fuel sales would be open 24 hours a day, 7 days a week, but the facility would not cater to semi - trucks. The subject property was rezoned in 2008 from Regional Center Residential 1 (RCR -1) District to Regional Center Commercial Downtown (RCC -D) District with overlay conditions to provide additional buffering between the commercially zoned property and the adjacent residential neighborhoods. The current zoning designation permits all of the proposed uses. SITE DATA: The approximately 38 acre site is generally located on the southwest side of I -35E, 1,200 feet north of Wind River Lane. It is undeveloped and has approximately 2,100 feet of frontage along I -35 E. The triangular- shaped property includes mature trees along the perimeter, a 3 -acre pond, and an Environmentally Sensitive Area (ESA) running north from the pond to I -35E. USE OF PROPERTY UNDER CURRENT ZONING: The purpose of Regional Center Commercial Downtown (RCC -D) District is to "create high density centers of activity including shopping, services, recreation, employment and institutional facilities supported by and serving an entire region." The RCC -D district is one of the most intense zoning districts in the Regional Mixed Use future land category and the City of Denton as a whole. It is intended to promote mixed use development with an urban character and businesses with a highly regional customer base to attract visitors to the city. Moderate to high density residential uses with a maximum density of 100 units per acre are permitted including townhomes and apartments associated with a mixed -use development. All commercial and institutional uses are permitted with the exception of the sale of products grown on site, motels, equestrian facilities, outdoor recreation, sexually oriented businesses, elementary schools, and cemeteries. Most industrial uses are either limited or not permitted. The proposed Buc -ee's Travel Center meets the intent of the RCC -D District, and its associated uses of Retail Sales and Service, Quick Vehicle Servicing, and Drive - through Facility are permitted in RCC -D. SURROUNDING ZONING AND LAND USES: North: Property to the northwest is zoned as Regional Center Residential 2 (RCR -2) District and Regional Center Commercial Neighborhood (RCC -N) District and is developed with retail and restaurant uses. Exhibit 1 - Preliminary Staff Report East: Adjacent property to the east is zoned at Regional Center Residential 1 (RCR -1) District and is developed with retail sales and service uses. Property across I -35E is zoned as Regional Center Commercial Neighborhood (RCC -N) District and is developed with restaurants and hotels. South: Property to the south is zoned as Neighborhood Residential 3 (NR -3) District and Regional Center Commercial Downtown (RCC -D) District and is developed with single - family dwellings and commercial uses. A multi - family dwelling development is also planned for the property to the south. West: Property to the west is zoned as Neighborhood Residential 3 (NR -3) and is developed with single - family dwellings. COMPATIBILITY OF THE DEVELOPMENT WITH SURROUNDING ZONING AND LAND USES: The proposed uses are permitted under the existing zoning. The Denton Development Code (DDC) provides for specific screening mechanisms to ensure sufficient buffering between the residential uses and the proposed use. No access to the adjacent neighborhoods will be provided from the proposed development. Access to the site will be finalized during platting and with the Building Permit; however, the current conceptual site plan shows access from the north near the Goodwill Store and the south from Unicorn Lake Boulevard. Two additional access points will be obtained from the I -35E improvements, one of which will extend Brinker Road under the highway directly to the site. COMPREHENSIVE PLAN: Per the Denton Plan 2030, the Future Land Use Designation is Regional Mixed Use. Regional Mixed Use applies to areas that serve as regional destinations within Denton. Development may include moderate and high density residential, commercial, office, entertainment and other uses except industrial, at the highest levels of scale and density within the city. This designation is located predominantly along I -35 interchanges and primary arterials to encourage the greatest regional accessibility. Future development in Regional Mixed Use areas will complement and embrace existing, viable uses, and raise the standard of design to increase their regional draw, accommodate greater connectivity and mobility options, and create a sense of place. CONSIDERATIONS: 1. The uses associated with the proposed Buc -ee's Travel Center are permitted in the RCC -D District. 2. A conceptual site plan was presented at a neighborhood meeting on November 11, 2015 (attached), but has not been reviewed for compliance with the Denton Development Code (DDC). Development of the site must comply with all standards outlined in the DDC, including platting, lot dimensions and coverage, site design, lighting, landscaping and tree canopy, ESA impacts, tree preservation, and parking. Any deviations from the development standards requested by the developer must be approved in accordance with the procedures outlined in the DDC. An official submittal has not been made to the City to date. Planning Report Project Number Page 2 of 4 Exhibit 1 - Preliminary Staff Report 3. Additionally, in 2008, an overlay was placed on the subject property. The conditions of the overlay require the following: a. 50 -foot buffer of landscaping is required, including the water features (existing pond), abutting the residential developments to the west ( Southridge Estates) and to the south (Wind River Estates) with the right to install a walking trail and other complementary hardscape around the existing pond (including the area within the 50 -foot buffer) in connection with a pedestrian easement; b. No building within 100 feet of the residential developments to the west and to the south of the subject Property shall exceed a maximum building height of 40 feet; c. The owner of the subject Property will not remove the existing pond along the western boundary of the subject Property abutting Southridge Estates; d. The owner of the subject Property (or its designee) will erect , at its expense, an 8 -foot wrought iron fence with finials for the benefit of the homes to the west of the subject property which are directly across from and adjacent to the aforementioned pond. 4. Due to the development of the site for a Buc -ee's Travel Center, access along I -35 E in south Denton will be improved. Specifically, TxDOT has approved an additional $28 million in improvements in order to help with traffic and congestion in the area. Three areas along I -35 E are slated for improvements in association with the construction of the Buc -ee's Travel Center: a. Loop 288 /Lillian Miller and I -35E - Plans for the intersection at Loop 288 /Lillian Miller and I -35 E will include four lanes in each direction (two through lanes and two left -turn lanes), U -turns on each side of the intersection, and pedestrian improvements. b. Brinker Road and I -35E - Brinker Road will be extended under I -35E and include two lanes in each direction, one turn lane, and U- turns. c. South Mayhill Road and I -35E - Mayhill Road and I -35E will be modified to include a U -turn on the western side of Mayhill Road. These improvements are scheduled to be completed in Spring of 2018. 5. The location of a new detention pond associated with the proposed development will help to mitigate nuisances between the commercial development and the adjacent residential neighborhoods. 6. Access from the subject property to the adjacent neighborhoods would be prohibited. 7. As a commercial development located along the I -35 E corridor, the proposed Buc -ee's Travel Center meets the intent of the Denton Plan 2030's Regional Mixed Use designation, drawing on a customer base beyond Denton's limits. Additionally, proposed improvements to I -35E in association with the development will improve the mobility along I -35E, a goal of the Denton Plan 2030. Planning Report Project Number Page 3 of 4 Exhibit 1 - Preliminary Staff Report 8. The developer held two neighborhood meetings on November 11. 2015. Approximately 100 citizens attended the meeting and voiced concerns about the project. Major topics of discussion included the hours of operation, buffer requirements, traffic, visual impacts, lighting, tax incentives, and crime. ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • Conceptual Site Plan • Elevations Prepared By: 1 Julie Wyatt, Associate Planner Date: 11/12/15 Reviewed By: Aimee Bissett Reviewed By: Munal Mauladad Deputy Director of Development Services Date: 11/12/15 Planning Report Project Number Page 4 of 4 Location Map CITY ITY OF DENTON Legend Current Zoning CM -G ZONING DC -G oo °p °m oip DC -N Amy, °pb��° CM -E DR -1 DR -2 IC -E NR -1 NR -6 M RCC -D M RD -5 EC -C IC -G NR -2 N R M U I= RCC -N RD -5X EC -I MF -1 NR -3 W® NRMU -12 RCR -1 w - co y ETJ MPC NR -4 PD RCR -2 s DENTON Denton Plan 2030 Future Land Use Map Exhibit 4 Legend Denton Plan 2030 Future Land Use Mixed Use Neighborhood Mixed Use Industrial Commerce N Residential Downtown Denton a j Neighborhood /University Compatibility Area IIIIIIIIIIIIIIIIIIIIII Government / Institutional Areas Downtown Compatibility Area Business Innovation Parks and Open Space w CITRural Y OF Residential -Low Density IIIIIIIIIIIIIIIIIIIIII Regional Mixed Use Non - Residential W .�� . Residential - Moderate Density Community Mixed Use IIIIIIIIIIIIIIIIIIIIII Commercial s � �j� ®,' � na x t of u aw w ow.rswx�+w+Ra WwW aro' roHetaootvm� \W�aw+weab�— cwz�wv�Y�+wra — aooi \oewoi \a Exhibit 7 Project: Buc -ee's - Denton Denton County - Denton, Texas Developer: Buc -ee's, Ltd. Date: November 12, 2015 Description: Rough Cost - No Design Project No.: 100530 -09 Item Description Quantity /Unit Unit Price Total Wastewater 8" Gravity Line 10" Gravity Line 4' -Dia. Wastewater Manhole Wet Connection (Existing Line) Testing and Trench Safety 235 LF $80.00 $18,800.00 1,980 LF $90.00 $178,200.00 7 EA $12,000.00 $84,000.00 1 EA $4,000.00 $4,000.00 1 LS $7,500.00 $7,500.00 SUBTOTAL Opinion of Probable Costs Wastewater 1 $292,500.00 Water 12" C -900 Waterline w/ appurtenances Fire Hydrant Service Connections Wet Connection Testing and Trench Safety Storm Sewer 2,535 LF $65.00 $164,775.00 11 EA $4,000.00 $44,000.00 10 EA $2,500.00 $25,000.00 3 EA $4,000.00 $12,000.00 1 LS $5,000.00 $5,000.00 SUBTOTAL Opinion of Probable Costs Water 1 $250,775.00 8'x6' RCB (Includes TxDOT Joint Use Section) 1,365 LF $450.00 $614,250.00 18" RCP 324 LF $70.00 $22,680.00 24" RCP 575 LF $75.00 $43,125.00 36" RCP 640 LF $125.00 $80,000.00 48" RCP 138 LF $180.00 $24,840.00 10' Curb Inlet 16 EA $3,000.00 $48,000.00 4 -Sided Area Inlet 2 EA $4,500.00 $9,000.00 Junction Box 1 EA $6,200.00 $6,200.00 Exhibit 7 ESA Double 48" Headwall 2 EA $14,000.00 $28,000.00 Remove Existing Headwall 1 EA $7,500.00 $7,500.00 Storm Sewer Riser 2 EA $2,500.00 $5,000.00 Testing and Trench Safety 1 LS $10,000.00 $10,000.00 SUBTOTAL Opinion of Probable Costs Storm Sewer 1 $898,595.00 Paving Reinforced Concrete Pavement 14,926 SY $50.00 $746,311.11 Pavement Headers 1,130 LF $30.00 $33,900.00 5' Sidewalk 3,034 LF $25.00 $75,850.00 ADA Ramps 24 EA $1,100.00 $26,400.00 4" Striping & Crosswalks 7,485 LF $2.00 $14,970.00 12" Stop Bars and & STOP 8 EA $1,000.00 $8,000.00 Traffic Control 3 MO $2,100.00 $6,300.00 SUBTOTAL Opinion of Probable Costs Storm Sewer 1 $911,731.11 Miscellaneous Items Street Lights 18 EA $11,000.00 $198,000.00 Street Signs 30 EA $500.00 $15,000.00 Median Landscaping 647 SY $25.00 $16,175.00 City Street ROW Dedication 1 LS $868,112.00 $868,112.00 Park /Pond Plaza Amenity 1 LS $1,394,766.00 $1,394,766.00 Erosion & Sedimentation Controls (SWPPP) 1 LS $50,000.00 $50,000.00 Bonding, Insurance and Mobilization (5 %) 1 LS $127,699.00 $127,699.00 SUBTOTAL Opinion of Probable Costs Miscellaneous Items 1 $2,669,752.00 SUBTOTAL Public Improvements 1 $5,023,353.11 20% CONTINGENCY: $ 11004,670.62 10% ENGINEERING AND PERMITTING: $ 502,335.00 3% CONSTRUCTION MANAGEMENT & INSPECTIONS: $ 150,701.00 TOTAL $ 6,681,059.73 Note: The above Engineer's Opinion of Probable Construction Cost is based on conceptual layout utilizing reasonable professional judgment and experience and does not constitute a warranty, expressed or implied, that the actual cost will not vary. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -1035, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff and discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests located along both the east and west sides of South Mayhill Road between Spencer Road to the north and Quailcreek and Old Edwards Road to the south in the City of Denton, Denton County, Texas; where discussions had, deliberation, and direction given, by the Denton City Council in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; discussion of these legal matters in an open meeting 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. [Pockrus to Mayhill Transmission Route] City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -1178, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests located along the east side of Bernard St. between Eagle Drive to the north and Collins Street to the south, in the City of Denton, Texas; where discussions had, deliberation, and direction given in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; where discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Eagle Substation] City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -1198, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorney's - Under Texas Government Code, Section 551.071. Consult with the City's attorneys regarding legal issues associated with the revocation of an SUP for Akers Towing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -1218, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding real property under Texas Gov't Code Section 551.072; Consultation with Attorneys under Texas Gov't Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property located at 301 E. McKinney, Denton, Texas where deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. 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. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -1219, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding economic development issues regarding a proposed amendment to the economic development program grant agreement between the City of Denton and WGBP Investments, LTD. This discussion shall include commercial and financial information the City Council has received from WGBP Investments, LTD, a business prospect 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; deliberate the amendment of the economic development program grant agreement between the City of Denton and WGBP Investments, LTD. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -1221, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding a proposed economic development program grant agreement between the City of Denton and BUC-EE's, LTD. This discussion shall include commercial and financial information the City Council has received from BUC-EE's, LTD, a business prospect 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; deliberate the economic development program grant agreement between the City of Denton and BUC-EE's, LTD. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTON File #: ID 15 -1085, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Presentation of the National Procurement Institute 2015 Achievement of Excellence in Procurement Award to the City of Denton Materials Management staff. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -1112, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Monica Jones regarding Animal Services, Code Enforcement, forged names and grand larceny. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -1118, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Christopher Klabunde regarding Johnson's Backyard Garden Workshare Program and farm update. City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -1119, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Ryan Crocker regarding farming the City parks - urban farming in Denton. City of Denton Page 1 of 1 Printed on 11/12/2015 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: November 17, 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 11/6/2015 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 11/6/2015 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., dba CBS ROOFING SERVICES THIS CONTRACT is made and entered into this 17th day of November 2015, by and between CBS Mechanical, Inc, dba CBS Roofing Services, 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 http: / /www.cityofdenton.com /departments- services /departments- g- p /materials- management- purchasing- distribution - center - /bids- and - proposals /current -bids- 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 "); (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 — CIVIC 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 :firm 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 cluality 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, equipnnent, 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 perforrnaance 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/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 offmal 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/Engiareer'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 rcguirernents of the Contract Documents upon written request of either the Owner or Contractor.1lie Architect./Engincer's resl�oi e to such requests will be made with reasonable promptness and within any time limits agreed upon. The 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 611 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 al)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 ItFI` 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 111, 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 Data Document S3 and Coin uter^ Software 'government Rntit 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 Toil01_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 -974, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Community Development CM/ ACM: John Cabrales Date: November 17, 2015 SUBJECT Consider approval of a resolution supporting the tax credit application to the Texas Department of Housing and Community Affairs (TDHCA) for the McKinney Denton Apartments Project; and providing for an effective date. BACKGROUND McKinney Denton Apartments is a proposed 322 unit tax credit development to be located on 16 acres at approximately 2400 E. McKinney Street between south Woodrow Lane and Loop 288. The applicant, the NRP Group, in association with the Denton Housing Authority, will develop, construct, and manage the $45 million dollar multifamily facility consisting of an extensive amenity package, including two community centers, educational facilities, a pool, playground areas, and outdoor cooking and bike facilities. The Board of Commissioners of the Denton Housing Authority has authorized the submission of the tax credit application by NRP to TDHCA. A unique aspect of the complex is the considerable space given to community centers, with a focus on childhood and adult education. Each resident will have access to afterschool and summer camp programs for their children, financial literacy courses, first time homebuyer classes, and health and wellness screenings. This will be at no additional cost to the resident. The complex will have 318 units, which is 98.8% of the 322 units that will provide housing to families and individuals at or below 60% of the area median income. OPTIONS 1. Approve the Resolution supporting and not objecting to the tax credit application; 2. Do not approve the Resolution, indicating an objection to and no support for the proposed tax credit application. ESTIMATED SCHEDULE OF PROJECT • 11/4/2015 - SUP approval by P &Z (Complete) • 11/6/2015 - Initial Final Plat submittal (Complete) • 12/1/2015 - SUP approval by City Council • 11/18/2015 - Preliminary Plat approval by P &Z • 1/18/2015 - Plan submittal for Building Permits • 1/20/2016 - Final Plat approval by P &Z City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -974, Version: 1 • 3/21/16 - Building Permits Ready • 4/4/2016 - Construction Start • 2/4/2018 - Construction Complete (22 month Construction Period) PRIOR ACTION/REVIEW (Council, Boards, Commissions) On November 10, 2015, the Planning and Zoning Commission voted to approve the Special Use Permit for the McKinney Denton Apartments project. FISCAL INFORMATION The NRP Group will provide all the financial and construction guarantees, limiting liability to the Denton Housing Authority. BID INFORMATION N/A EXHIBITS Exhibit 1 - Resolution Respectfully submitted: Lancine Bentley Community Improvement Manager Prepared by: Barbara L. Ross Community Development Administrator City of Denton Page 2 of 2 Printed on 11/12/2015 \ \CODVFILC \Legal \Our Documents \Resolutions \15 \Denton Apts Resolution DHA.docx EXHIBIT 1 RESOLUTION NO. A RESOLUTION SUPPORTING THE TAX CREDIT APPLICATION TO THE TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS FOR THE MCKINNEY DENTON APARTMENTS PROJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, McKinney Denton Apartments Ltd., a Texas limited partnership has proposed a 322 unit affordable rental housing development named Denton Apartments (the "Development "), to be located at 2400 E. McKinney Street, in the City of Denton, Texas (the "City "); and WHEREAS, the Applicant submitted an application to the Texas Department of Housing and Community Affairs ( "TDHCA ") for 2015 Housing Tax Credits for the Development; and WHEREAS, it is necessary that the City Council provide a resolution of no objection as required by the TDHCA 2015 Housing Tax Credit Application for the Development; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DENTON: SECTION 1. In accordance with the requirements of Texas Government Code §2306.67071 and Texas Administrative Code §10.204(4), it is hereby found that; (i) Notice has been provided to the Governing Body in accordance with Texas Government Code §2306.6707(a); and (ii) The Governing Body has had sufficient opportunity to obtain a response from the Applicant regarding any questions or concerns about the proposed Development; and (iii) The Governing Body has held a hearing at which public comment may be made on the proposed Development in accordance with Texas Government Code. §2306.67071(b); and (iv) After due consideration of the information provided by the Applicant and public comment, the Governing body does not object to the proposed Application. SECTION 2. As provided for in 10 Texas Administrative Code §11.3(d) and §11.4(c)(1), it is hereby acknowledged that the proposed new construction development is located in a census tract that has more than 20% Housing Tax Credit Units per total households in the census tract. SECTION 3. The City of Denton hereby supports the proposed Denton Apartments, and confirms that its governing body has voted specifically to approve the construction of the Development and to authorize an allocation of Housing Tax Credits for the Development. \ \CODVFILC \Legal \Our Documents \Reso1utions \150enton Apts Resolution DHA.docx SECTION 4. For and on behalf of the City of Denton, Jennifer Walters, City Secretary, is hereby authorized, empowered and directed to certify this resolution to the Texas Department of Housing and Community Affairs. SECTION 5. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. RIM ATTEST: JENNIFER WALTERS, CITY SECRETARY FI-XV APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1022, Version: 1 Agenda Information Sheet DEPARTMENT: Police ACM: John Cabrales Jr. Date: November 17, 2015 SUBJECT Consider adoption of an ordinance amending Chapter 23 of the City of Denton Code of Ordinances by adding Article V "Non- Consent Towing;" providing a severability clause; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; and providing an effective date. BACKGROUND In March 2015, a local resident, Pat Smith, representing a citizen's group, Denton for Fair Towing, spoke to the Council regarding the financial burden created by fees assessed to citizens for non - consent towing. During his presentation Mr. Smith explained how non - consent towing fees are regulated by the state through legislation found in the Texas Towing and Booting Act located in Title 14, Chapter 2308 of the Texas Occupations Code and how Title 14, Chapter 2303 of the Texas Occupations Code regulates vehicle storage facilities. He further explained that the Texas Department of Licensing and Regulation (TDLR) is the state agency that regulates vehicle towing and storage of towed vehicles in Texas. After this brief introduction, Mr. Smith brought forward his group's concern that towing companies in Denton assess the state maximum fees allowed by TDLR to vehicle owners. Mr. Smith ultimately sought local regulation of fee maximums and a list of chargeable miscellaneous fees as well as a means to educate the affected public regarding their rights as consumers to protest the legality of the tow. On March 24, 2015, The Council was briefed on both Texas Occupations Code Title 14 Chapters 2303 and 2308 and the operations of TDLR as it relates to tow services and vehicle storage facilities. This presentation highlighted Texas Occupation Code 2308 section 202, which allows the governing body of a political subdivision to regulate allowable fees collected for non - consent tows. Section 203 requires a fee study be conducted prior to setting a local fee maximum and that the fee be a representation of the fair value of the service and reasonably tied to financial and accounting information. At this meeting a recommendation was made to form a task force to look into the issue of non - consent towing. In response to this recommendation, a Towing Task Force was formed that had varied representation comprised of towing company owners and their representatives, business owners who utilize non - consent towing services and their representatives and concerned citizens. This varied makeup allowed for a broad array of viewpoints on matters of concern to each of the parties. The first meeting of the Towing Task Force was held on July 7, 2015 and an informal staff report was generated on the progress of the Towing Task Force on July 24, 2015. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1022, Version: 1 Subsequent meetings of the Towing Task Force were held where a draft ordinance was revised with necessary changes made at the direction of its members to create an amenable document governing non - consent towing. On September 10, 2015 the Towing Task Force conducted a final review of the draft ordinance on non - consent towing and the associated fee ordinance and approved of the content and changes made. The final draft of the non - consent towing ordinance will be added to Chapter 23 of the local Code of Ordinances as Article V and follows Article IV which governs police initiated towing. Article V addresses prohibitions for charges in excess of the fee established by ordinance and requirements for digital photography of vehicles prior to towing. It lists requirements for licensing of operators with a provision for revocation and denial. Additionally, the licensing process includes a background check similar to the requirement already in place in Chapter 23 Article IV Police Initiated Tows. It requires registration of all wreckers used for non - consent towing with a yearly safety inspection of wreckers used to perform non - consent tows. Vehicle storage facilities that store non - consent tows from Denton will be required to be within the City Limits or within the ETJ of the City. Towing rights information is also required to either be displayed at the pay window of towing companies or towing companies are required to provide a printed copy of the towing bill of rights with the receipt for payment of non - consent tows. RECOMMENDATION Review and approve Article V of the non - consent towing ordinance with an effective date of January 1, 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) During the March 24, 2015 Work Session, Council was briefed on both Texas Occupations Code Title 14 Chapters 2303 and 2308 and the operations of TDLR as it relates to tow services and vehicle storage facilities. FYUIRITC Exhibit I- Towing Ordinance Respectfully submitted: Lee Howell Chief of Police Prepared by: David Mays Police Lieutenant City of Denton Page 2 of 2 Printed on 11/12/2015 Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AMENDING CHAPTER 23 "POLICE" OF THE CITY OF DENTON CODE OF ORDINANCES BY ADDING ARTICLE V. "NON - CONSENT TOWING;" PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton finds it in the best interest of citizens to adopt provisions governing non - consent towing; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 23 "Police" of the Code of Ordinances of the City of Denton is hereby amended by adding Article V. "Non- Consent Towing," to read as follows: ARTICLE V. NON - CONSENT TOWING DIVISION 1. GENERALLY Sec. 23 -110. Definitions. Consent tow means any tow of a motor vehicle initiated by the owner or operator of the vehicle or by a person who has possession, custody, or control of the vehicle. The term does not include the tow of a motor vehicle initiated by a peace officer investigating a traffic accident or a traffic incident that involves the vehicle. Departinent means the City of Denton Police Department. Driver's license has the meaning assigned by Section 521.001 of the Texas Transportation Code. Fully prepared fog^ transport means a vehicle that is attached to a tow truck, is lifted, with tow lights and safety chains attached, and, if required, is placed on a dolly in a raised position. Non - consent tow means any tow of a motor vehicle that is not a consent tow. Parking facility means public or private property used, wholly or partly, for restricted or paid vehicle parking. The term includes: (a) a restricted space on a portion of an otherwise unrestricted parking facility; and (b) a commercial parking lot, a parking garage, and a parking area serving or adjacent to a business, church, school, apartment complex, property governed by a property owners' association, or government -owned property leased to a private person, including: Exhibit 1 (1) a portion of the right -of -way of a public roadway that is leased by a governmental entity to the parking facility owner; and (2) the area between the facility's property line abutting a county or municipal public roadway and the center line of the roadway's drainage way or the curb of the roadway, whichever is farther from the facility's property line. Parking facility owner means: (a) an individual, corporation, partnership, limited partnership, limited liability company, association, trust, or other legal entity owning or operating a parking facility; (b) a property owners' association having control under a dedicatory instrument, as that term is defined in Section 202.001 of the Texas Property Code, over assigned or unassigned parking areas; or (c) a property owner having an exclusive right under a dedicatory instrument, as that term is defined in Section 202.001 of the Texas Property Code, to use a parking space. Private property tow means any tow of a vehicle authorized by a parking facility owner without the consent of the owner or operator of the vehicle. Property owners' association has the meaning assigned by Section 202.001 of the Texas Property Code. Public roadway means a public street, alley, road, right -of -way, or other public way, including paved and unpaved portions of the right -of -way. Restricted space means a parking space that is properly marked in a parking facility that is properly signed according to state law. Tow truck means any motor vehicle designed and used primarily for removing wrecked or disabled vehicles upon any street. Tow truck operator means an individual operating a tow truck. Tow truck operator's license means a license issued under this article. Towing company means individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state, but does not include a political subdivision of the state. Vehicle means every device in, upon, or by which any person or property is or may be transported or drawn upon a street, except devices moved by human power or used exclusively upon stationary rails or tracks. 2 Exhibit 1 Vehicle storage facility means the site to which a permit holder tows and stores vehicles, which meets the requirements as required by the Texas Department of Transportation. Vehicle owner means a person: (a) named as the purchaser or transferee in the certificate of title issued for the vehicle under Chapter 501 of the Texas Transportation Code; (b) in whose name the vehicle is registered under Chapter 502 of the Texas Transportation Code, or a member of the person's immediate family; (c) who holds the vehicle through a lease agreement; (d) who is an unrecorded lienholder entitled to possess the vehicle under the terms of a chattel mortgage; or (e) who is a lienholder holding an affidavit of repossession and entitled to repossess the vehicle. Sec. 23 -111. Administration. (a) The police chief shall administer and enforce this article. (b) The police chief shall adopt rules for the administration and enforcement of this article. The rules must be reasonably designed to promote health and safety and ensure that: (1) Towing companies and tow truck drivers are able to perform their responsibilities under this article and carry adequate liability insurance; (2) The police chief is able to determine the correct identity and qualifications of individuals licensed under this article; and (3) Tow trucks are operated in a safe and efficient manner. Sec. 23 -112. Authority and duties of the department. The department shall implement and enforce this article. In addition to the powers and duties elsewhere prescribed in this article, the department is authorized to: (a) Conduct random periodic investigations of towing companies and vehicle storage facilities licensed by the city concerning their compliance with this article and state law. (b) Inspect tow trucks for compliance with vehicle and equipment safety standards established by this article. 3 Exhibit 1 (c) Conduct random inspections of tow truck records for compliance with state laws and public safety. Inspections should be performed in a reasonable manner so as to comply with the laws of the state. (d) Conduct random inspections of vehicle storage facility records for compliance with state law and public safety. Inspections should be performed in a reasonable manner so as to comply with the laws of the state. Sec. 23 -113. Compliance with state and local ordinances. (a) All towing companies, tow truck drivers, vehicle storage facilities, and property owners under this article shall comply with all applicable state laws, City of Denton ordinances, and rules issued by the State Department of Licensing and Regulation applicable to a tow truck, towing company, tow truck operator, or vehicle storage facility. article. (b) A person commits an offense if the person: (1) performs an act prohibited by this article; (2) fails to perform an act required by this article; or (3) violates a rule adopted under this article. (c) A violation of this article is a Class C misdemeanor. (d) Proof of a mental state is not required for the prosecution of a violation of this (e) An exception to an offense under this article may be used as an affirmative defense. Sec. 23 -114. Governmental entities excluded. This article does not apply to towing that is performed by a governmental entity. Sec. 23 -115. Exemptions. Except as specifically noted, this article does not apply to: (a) a person towing a vehicle with the express consent of the vehicle owner; (b) a person towing a vehicle from public streets and ways or private property under the direction of the department; or (c) a person who engages in towing a vehicle in connection with a bona fide repossession of same when written authorization has been received from the lienholder. M Exhibit 1 Sec. 23 -116. Fees. The city council shall establish a fee required or authorized under this article by separate ordinance. Sec. 23 -117. Prohibited charges for non - consent tows. article: A person may not charge or attempt to charge a fee related to a non - consent tow under this (a) in excess of the fee established by ordinance; (b) for a service not performed or equipment not used; (c) that is not authorized by ordinance; or (d) if individual parking spaces in the parking facility are not designated by visible markings. Sec. 23 -118. Photograph required. A towing company that tows a vehicle is required to maintain a digital photo of the entire vehicle being towed before the vehicle is towed from the parking facility. The towing company must maintain photos of towed vehicles for a period of not less than 60 days from the date the vehicle is towed. Secs. 23 -119 — 23 -129. Reserved. DIVISION 2. OPERATOR'S LICENSE FOR NON - CONSENT TOWS Sec. 23 -130. License required for non - consent tows. (a) Except as provided by section 23 -131 "Operation while first application pending," a person may not perform non - consent tows in the city without a tow truck operator's license issued under this article. (b) A tow truck operator licensed under this article must wear the tow truck operator's license while performing a non - consent tow. Sec. 23 -131. Operation while first application pending. (a) An applicant whose first application for a tow truck operator's license under this article is pending may: (1) perform non - consent tows in the city if the applicant has a valid tow truck operator's license issued by another city; or (2) accompany and assist a tow truck operator licensed under this article. E Exhibit 1 (b) A person whose application is denied may not continue to perform non - consent tows or provide assistance under this article. Sec. 23 -132. Application for license. (a) An applicant for a tow truck operator's license must file an application with the department on a form prescribed by the police chief and signed by the applicant and sponsoring towing company. (b) An application must include all information required by rule adopted under this article. (c) An applicant must submit the prescribed fee with the application. The fee is non- refundable. (d) An applicant must meet the qualifications of Sec. 23 -88 for apolice- initiated towing permit to qualify for a tow truck operator's license under this Article. Sec. 23 -133. License term and renewal. (a) Unless revoked or suspended, a tow truck operator's license expires two years after the date of issuance. (b) To obtain a renewal license, a license holder must complete a new application and pay the prescribed non - refundable fee. Sec. 23 -134. Duplicate license. A license holder may obtain a duplicate tow truck operator's license to replace a lost or destroyed license. The license holder must pay the required fee. Sec. 23 -135. Change in application information or employment status. A license holder shall notify the department not later than the 30th day after a material change in the license holder's application information or a change in the license holder's employment by a particular towing company ends. Sec. 23 -136. Application after revocation or denial. A person whose tow truck operator's license is revoked, or whose application for a license is denied, may not reapply for a license for at least six months after the date of revocation or denial. 0 Exhibit 1 Secs. 23 -137 — 23 -140. Reserved. DIVISION 3. TOW TRUCK REGULATIONS Sec. 23 -141. Registration Required. (a) Any tow truck that is used to perform any non - consent tow, or any part thereof, shall be registered as a tow truck under this article and applicable provisions of state law, including, without limitation, Chapter 2308 of the Texas Occupations Code. (b) Except as provided by subsection (c) of this section, a person may not operate or permit another person to operate a tow truck on a public roadway in the city unless the person obtains a registration certificate for the tow truck under this article. (c) Any tow truck that is used to perform any non - consent tow on private property in the city must be registered with the department, regardless of whether the owner of the tow truck has a place of business in the city. Sec. 23 -142. Application for registration certificate. (a) An applicant for a tow truck registration must: (1) file an application with the department on a form prescribed by the police chief, (2) submit the required, non - refundable fee; (3) provide verification that the tow truck is equipped to tow light -duty or heavy -duty motor vehicles according to the manufacturer's guidelines; and (4) provide proof of insurance that meets the requirements of Sec. 86 -400 of Title 16 of the Texas Administrative Code. (b) Upon application, the department will inspect the tow truck to determine compliance with the requirements of this article. If the tow truck is found in compliance, the department shall issue proof of registration to the applicant. The proof of registration shall be attached to the tow truck for which it is issued, at the place on the tow truck designated by the police chief. It shall be unlawful for any person to drive or operate a tow truck without the proof of registration being attached. (c) Requirements for registration: (1) Each tow truck operator must meet the signage, safety equipment, safety clothing, and identification requirements of § §86.701, 86.1000, and 86.1001 of Title 16 of the Texas Administrative Code. (2) Each tow truck shall meet the following minimum requirements: 7 Exhibit 1 Except for heavy -duty tow trucks, the tow truck's chassis cab shall be rated at no less than one ton by the manufacturer and will be equipped by the manufacturer with dual wheels and tires at each end of the rear axle; b. At all times the tow truck must carry tow lights with appropriate cable (unless wireless) and cushions to protect a vehicle's finish; and At all times the tow truck must be equipped with safety (mud) flaps with the bottom edge of the safety flap no more than eight inches from the surface of a public roadway. Sec. 23 -143. Registration certificate term and reapplication. (a) A tow truck registration certificate remains in effect for one year from the date of issuance, unless it is revoked. (b) The registration for each tow truck that is used to perform non - consent tows subject to this article shall be renewed annually by payment of the fee stated for this provision on the City fee schedule to the department, which shall verify that the tow truck is still in compliance with this article. (c) If a registration certificate is revoked, an applicant requesting re- registration must file a new application and pay the none - refundable fee. The tow truck must pass a new inspection by the department. Sec. 23 -144. State licensing of tow truck drivers. Tow trucks shall be operated by persons who hold the type of state driver's license that is required for their tow truck, as applicable. Sec. 23 -145. Equipment and markings required. (a) A towing company shall maintain a tow truck and its required equipment in a safe, operating condition at all times that the tow truck is operating on a public roadway. (b) Tow trucks operating in the city shall display the markings required by law, and by the rules adopted under this article. (c) A peace officer may stop and inspect a tow truck to determine whether the tow truck is equipped as required by this article, and whether the equipment is in working order. Exhibit 1 Secs. 23 -146 — 23 -150. Reserved. DIVISION 4. TOWING SERVICE REGULATIONS Sec. 23 -151. Notification of vehicle removal. (a) A towing company that removes a vehicle in accordance with Chapter 684 of the Texas Transportation Code or in executing a repossession shall notify the department not later than one hour after the removal from the property or the parking facility. (b) The notification must include: (1) the name of the towing company; (2) the date, time, and location of the removal; (3) the physical description, license plate number, and vehicle identification number of the vehicle removed; (4) the name of the tow truck operator who performed the removal; and (5) the location of the vehicle storage facility where the vehicle is being stored. Sec. 23 -152. Towing restricted. (a) Except as provided in subsection (b) of this section, a towing company that intends to remove a vehicle from a parking facility in accordance with Chapter 684 of the Texas Transportation Code may not tow a vehicle when the vehicle owner objects to the tow, tenders the payment of a fee authorized in the towing fee schedule established by the city council and maintained on file in the office of the city secretary, and removes the vehicle within 10 minutes. However, if a vehicle is not removed within 10 minutes and is in the process of being prepared for transport but not fully prepared for transport, a drop fee will apply. (b) If a towing company is authorized to remove a vehicle from a parking facility, it may remove the vehicle earlier than 10 minutes even if the owner objects to the tow if the vehicle: (1) is in or obstructs a vehicular traffic aisle, entry, or exit of the parking facility; (2) prevents a vehicle from exiting a parking space in the parking facility; or (3) is in or obstructs a properly marked fire lane. (c) It is a violation of this article for a towing company performing a non - consent tow to remove a vehicle from a parking space if the vehicle is not fully prepared for transport. 0 Exhibit 1 Sec. 23 -153. Service rates. The rates hereinafter described are to be utilized by towing companies for non - consent tows originating within the corporate limits of the city pursuant to this article. This section does not apply to a repossession. A towing company may not charge more than one fee under this article for towing a single vehicle. Sec. 23 -154. Towing fee schedule; payment. (a) The towing fee schedule is established by city council and maintained on file in the office of the city secretary. (b) No towing fees may be charged other than those fees listed in this article, including charges for dollies, special equipment, or mileage. (c) Weight, for purposes of this article, shall be determined by the gross weight recorded on the vehicle registration. (d) If the owner or operator of a vehicle which is parked in violation of this Code or state law arrives before the vehicle is hooked up, the tow truck operator shall release the vehicle for free. (e) A towing company may charge a fully prepared for transport fee when a vehicle has been fully prepared for transport but has not been removed from the property. (f) A towing company may charge the standard non - consent fee when it removes a vehicle from the property. (g) For payment of any fee under this article, a towing company or vehicle storage facility shall accept payment by cash, electronic check, debit card, or credit card for any charge associated with delivery or storage of a vehicle. However, payment by credit or debit card may be refused if the named cardholder is not present. (h) Release of a vehicle may not be denied based on the inability of the towing company or vehicle storage facility to accept payment by electronic check, debit card, or credit card of any charge associated with delivery or storage of a vehicle, unless the inability to accept such payment is due to factors outside the control of the towing company or vehicle storage facility, such as a power outage or machine malfunction. In such case, payment due shall be frozen until a 12 -hour period of time has elapsed. (i) In no way is this section to be construed to mean that a towing company or vehicle storage facility may not charge less than the fees stated in the towing fee schedule. The fees in the towing fee schedule are the maximum that can be charged for any towing or drop fee of a vehicle in accordance with this article. 0) A towing company or vehicle storage facility must provide a copy of the City of Denton Towing Customer Bill of Rights with each receipt for any non - consent tow performed within the city limits of Denton. This obligation may be satisfied by conspicuously posting a copy 10 Exhibit 1 of the City of Denton Towing Customer Bill of Rights at the towing company or vehicle storage facility pay window. Sec. 23 -155. Tow fee study. (a) Three or more towing companies performing, either alone or together, fifty percent (50 %) or more of the non - consent tows during the preceding calendar year may request a tow fee study. Said request must be made in writing to the police chief. The request must identify the specific fees requested to be reviewed and indicate the requestor's willingness to provide any necessary financial documentation that the city may deem necessary to conduct the review. (b) A non - refundable fee of five thousand dollars ($5,000.00) in the form of a cashier's check payable to the city must be forwarded to the police chief before the study will be undertaken. This fee is intended to defray the cost of the study. (c) The tow fee study shall be performed at the direction of the police chief. The methodology used to conduct the study will be established by the finance department of the city. The finance department shall determine what financial information is necessary to conduct the study, to include, but not limited to financial information requested from non - consent towing companies in the city. Any and all towing companies joining in the request for a tow fee study must provide all requested financial information. Such information shall be kept confidential to the extent allowed by law. (d) The tow fee study shall be completed within 120 days of the date the deposit is paid and all requested financial information is received, whichever is later. (e) The findings of the tow fee study shall be presented to the city council. Based upon the results of the tow fee study, the city council may change the non - consent towing fees. The maximum fees must represent the fair market value of the services of a towing company performing non - consent tows in the city. (f) The city is not required to conduct more than one tow fee study within a two -year time period, measured from the date the city council most recently considered a tow fee study. (g) Nothing in this section shall preclude the city from undertaking a tow fee study at its own discretion at any time. A consumer price index analysis to adjust towing fees shall be conducted annually, with any adjustment in fees taking effect January 1 of the following year. A new fee ordinance will be adopted in the event of any adjustment in fees. Sec. 23 -156. Vehicle storage facility required. A towing company shall own or have a contract to use a designated vehicle storage facility to store a vehicle removed in a non - consent tow that is: (a) licensed by the State of Texas; and (b) located within the city or the city's extraterritorial jurisdiction. 11 Exhibit 1 Sec. 23 -157. Removal to a designated facility. (a) Except as provided in subjection (b) of this section, a towing company that performs a non - consent tow of a vehicle from private property: (1) shall immediately tow the vehicle to the towing company's designated vehicle storage facility; and (2) may not unload the towed vehicle at a place other than the towing company's designated vehicle storage facility. (b) A towing company that performs a non - consent tow of a vehicle from private property may unload a vehicle at a place other than its vehicle storage facility only: (1) if safety reasons or mechanical breakdown require the transfer of the vehicle to another tow truck; or (2) to transfer the vehicle to another tow truck, within 100 feet of the private property, if the original tow truck is the company's only available tow truck that is capable of entering the property and removing a vehicle, and the original tow truck is needed immediately for police- initiated towing. Sec. 23 -158. Release of vehicle from storage; impoundment. (a) A vehicle storage facility may not refuse to release a vehicle in its possession to the vehicle owner, or the owner's agent, after the person pays the applicable fees, unless a law enforcement agency directed that vehicle not be released, or release of the vehicle is prohibited by a court order. (b) A person may not remove or attempt to remove a vehicle that is lawfully stored by a vehicle storage facility unless the applicable charges are paid and accepted, or the person removing the vehicle has obtained permission from the vehicle storage facility. Secs. 23 -159 — 23 -170. Reserved. DIVISION 5. ENFORCEMENT Sec. 23 -171. Denial, suspension, and revocation of license. The police chief may deny a person's application for a tow truck operator's license and suspend or revoke a tow truck operator's license issued under this article, as prescribed in the rules adopted by the police chief. 12 Exhibit 1 Sec. 23 -172. Revocation of tow truck registration certificate. The police chief may revoke the registration certificate for a tow truck that fails to meet the requirements of state law regarding non - consent tows or for violations of state law that affect the public safety, this article, or rules adopted under this article. Sec. 23 -173. Notice required. (a) Before taking adverse action under this article, the police chief shall notify the applicant or holder of the intended action, except that advance notice is not required in actions related to: (1) safety hazards; (2) absence of state motor carrier registration; or (3) absence of ownership or contract with licensed vehicle storage facility. (b) The police chief shall send the notice by certified mail, return receipt requested to the mailing address listed on the person's application, certificate, or license, as applicable. (c) The notice is presumed to have been received on the 10th working day after mailing, unless an earlier date is indicated on the return receipt. (d) Except for actions that are authorized to take effect without advance notice, denial, suspension, revocation, or removal is effective on the 20th day after the notice is mailed. (e) If the police chief takes action without advance notice, the police chief shall send a notice that includes the factual basis for the action to the person or towing company affected by the action. Sec. 23 -174. Hearing. (a) The person to whom a notice of denial, suspension, revocation, or removal is sent may request a hearing. (b) The request must be in writing and received by the police chief not later than the 15th day after the notice was sent. If the person fails to submit to the police chief a request for hearing not later than the 15th day after the notice is sent, the denial, suspension, revocation, or removal becomes final on the expiration of the time specified in the notice. (c) The police chief shall hold an informal hearing not later than the 15th day after the request for a hearing is received. At the hearing, the formal rules of evidence do not apply. The police chief shall decide the appeal on the basis of the preponderance of the evidence presented. (d) The police chief shall make a determination on the hearing not later than the 10th day after the hearing. The police chief may affirm, reverse, or modify the previous determination. 13 Exhibit 1 Sec. 23 -175. Appeal. (a) A person may appeal the police chief's decision in writing to the city manager not later than the loth day after the effective date of the decision. This person must include a statement of the grounds for the appeal. (b) The notice of appeal does not stay the police chief's decision. (c) The city manager shall schedule a public hearing not later than the 15th day after receipt of the notice of appeal. The city manager shall give notice of the time and place set for the hearing to the police chief and the appellant not less than five days before the hearing. Sec. 23 -176. Appeal procedure. (a) At an appeal hearing under section 23 -175, the police chief and the appellant may present evidence, testimony, and argument. (b) The city manager's decision is final. SECTION 2. This ordinance shall repeal every prior ordinance in conflict herewith, but only insofar as the portion of such prior ordinance shall be in conflict; and as to all other sections of the ordinance not in direct conflict herewith, this ordinance shall be and is hereby made cumulative except as to such prior ordinances or portions thereof as are expressly repealed hereby. SECTION 3. Any person violating any provision of this ordinance, shall upon conviction, be fined a sum not exceeding $500.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4. If any provision of this ordinance or application thereof to any person or circumstance is held invalid by any court, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares that it would have enacted the remaining portions despite any such validity. SECTION 5. Save and except as amended hereby, all the sections, subsections, and clauses of Chapter 23 "Police" of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. SECTION 6. This ordinance providing for a penalty shall become effective 14 days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record- Chronicle, the official newspaper of the City of Denton, Texas, within 10 days of the date of its passage. 14 Exhibit 1 PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 15 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1023, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Police John Cabrales November 17, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, establishing fees for non - consent towing within the City of Denton pursuant to Chapter 23, Article V of the Code of Ordinances of the City of Denton, Texas, titled Non - Consent Towing; providing that a schedule of fees shall be maintained on file in the Office of the City Secretary; providing a savings clause; providing a severability clause; and providing an effective date. BACKGROUND In March 2015, Pat Smith, a local resident representing a citizen's group, Denton for Fair Towing, spoke to the Council regarding the financial burden created by fees assessed to citizens for non - consent towing. On March 24, 2015, The Council was briefed on both Texas Occupations Code Title 14 Chapters 2303, 2308 and the operations of Texas Department of Licensing (TDLR) as it relates to tow services and vehicle storage facilities. This presentation highlighted Texas Occupation Code 2308 section 202, which allows the governing body of a political subdivision to regulate allowable fees collected for non - consent tows. Section 203 requires a fee study be conducted prior to setting a local fee maximum and that the fee be a representation of the fair value of the service and reasonably tied to financial and accounting information. At this meeting a recommendation was made to form a task force to look into the issue of non - consent towing. In response to this recommendation, a Towing Task Force was formed to help create a draft ordinance governing non - consent towing. On September 10, 2015 the Towing Task Force conducted a final review of the draft ordinance on non - consent towing and the associated fee ordinance and approved of the content and changes made. The fee ordinance governs the maximum fees towing companies are allowed to charge citizens for non - consent tows in Denton. The maximum tow rate in this fee ordinance is based on information provided to The City of Denton by TDLR and is based on research conducted by Morningside Research and Consulting for TDLR in a document titled "Study of Private Property Towing Fees - Rates for Private Property Towing in Texas with Justification ". Other rates chargeable by towing companies found in this fee ordinance are based on TDLR requirements. Rates charged for services performed by the City are intended to cover some of the administrative costs associated with the licensing and permitting of companies, tow trucks and operators. RECOMMENDATION City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1023, Version: 1 Adopt the fees listed in the fee ordinance with a beginning date of January 1, 2016 and require a Consumer Price Index (CPI) adjustment of the maximum chargeable rate annually. EXHIBITS Exhibit 1 Towing Fee Ordinance Respectfully submitted: Lee Howell Chief of Police Prepared by: David Mays Lieutenant City of Denton Page 2 of 2 Printed on 11/12/2015 Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ESTABLISHING FEES FOR NON - CONSENT TOWING WITHIN THE CITY OF DENTON PURSUANT TO CHAPTER 23, ARTICLE V OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS, TITLED NON - CONSENT TOWING; PROVIDING THAT A SCHEDULE OF FEES SHALL BE MAINTAINED ON FILE IN THE OFFICE OF THE CITY SECRETARY; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Manager, in consultation with the Police Department, recommended an ordinance regulating non - consent towing within the City of Denton; and WHEREAS, the adoption of the non - consent towing ordinance also necessitates the adoption of a towing fee ordinance; and WHEREAS, the City Council deems it in the public interest to establish the allowable towing fees as set them forth in this ordinance; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following fares are hereby established by this ordinance to be charged pursuant to the specified provisions of Chapter 23, Article V of the Code of Ordinances: MAXIMUM TOWING FEES ALLOWED $ 20.00 TOW TRUCK OPERATOR'S LICENSE $ 10.00 DUPLICATE LICENSE FOR LOST OR DESTROYED TOW TRUCK OPERATOR'S LICENSE $ 25.00 TOW TRUCK REGISTRATION $145.00 LIGHT DUTY TOW $ 72.00 LIGHT DUTY TOW DROP FEE $166.00 MEDIUM DUTY TOW $ 83.00 MEDIUM DUTY TOW DROP FEE $512.00 HEAVY DUTY TOW $256.00 HEAVY DUTY TOW DROP FEE S:TZ 1 \Our Docmnents \0rdi1iances \15\to ungfres.do- Exhibit 1 $ 20.00 DAILY STORAGE FEE PER DAY OR PART OF DAY FOR MOTOR VEHICLES 25 FEET LONG OR LESS $ 35.00 DAILY STORAGE FEE PER DAY OR PART OF DAY FOR MOTOR VEHICLES LONGER THAN 25 FEET $ 50.00 CERTIFIED MAIL FEE $ 20.00 IMPOUNDMENT FEE SECTION 2. That the above - mentioned fares as established by the City Council shall be placed on file in the office of the City Secretary and made available to any member of the public who wishes to see a copy of the fares as established by this ordinance. The City Secretary is directed to maintain this Towing Fee schedule on file in the City Secretary's office as adopted hereby or as in the future may be established by the City Council. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. That if any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such validity. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR Page 2 S:T-1 \0ur Darns \0rdinances \15\t —ung fres.docx Exhibit 1 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 Legislation Text File #: ID 15 -1044, Version: 1 DEPARTMENT: CM/ ACM: Date: Agenda Information Sheet Police John Cabrales, Jr. November 17, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, incorporated for providing aid to the City of Denton Police Department in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non - offending family members; providing for the expenditure of funds in the amount of $105,891.00 therefor; and providing for an effective date. BACKGROUND The Children's Advocacy Center for Denton County ( CACDC) is a non - profit agency that assists the Denton Police Department with the investigation and prosecution of child abuse cases in Denton County. CACDC uses a team approach to consolidate law enforcement, Child Protective Services, prosecutors, therapists and volunteers in one location which helps to minimize the trauma experienced by victims of child abuse. CACDC also provides free counseling services to abused children and their family members. This collaborative approach has become the gold standard for investigating child abuse. The CACDC does not bill law enforcement for its services, but rather makes an annual request that participating municipalities consider allocating their "fair share" of funding based on the percentage of CACDC services received. The fair share is calculated by multiplying the police department's percent of services received from CACDC by the expenses remaining after subtracting federal and state funding, and special event/fundraising expenses from total agency expenses for the previous fiscal year. RECOMMENDATION Staff recommends that Council approve the ordinance as written. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On September 15, 2015, the City Council formally approved an allocation of $105,891 as part of the Fiscal Year 2015 -16 Budget. FISCAL INFORMATION Subject to this Agreement, the funds were allocated as part of the Fiscal Year 2015 -16 Budget. The funds will City of Denton Page 1 of 2 Printed on 11/12/2015 File M ID 15 -1044, Version: 1 continue to be administered by the Denton Police Department. EXHIBITS Exhibit 1 CACDC Ordinance and Contract Respectfully submitted: Lee Howell Chief of Police Prepared by: Lenn Carter Deputy Police Chief City of Denton Page 2 of 2 Printed on 11/12/2015 sAle$al \our documents \ordinances \15 \childrens advocacy center.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, INCORPORATED FOR PROVIDING AID TO THE CITY OF DENTON POLICE DEPARTMENT IN THE INVESTIGATION OF CHILD ABUSE CASES; PROVIDING CLIENT AND CLINICAL SERVICES TO VICTIMS OF CHILD ABUSE AND NON - OFFENDING FAMILY MEMBERS; PROVIDING FOR THE EXPENDITURE OF FUNDS IN THE AMOUNT OF $105,891.00 THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Children's Advocacy Center for Denton County, Incorporated, a Texas non -profit corporation, (the "Organization ") aids the City of Denton Police Department of investigation of child abuse cases and provides client and clinical services to victims of child abuse and non- offending families members from the city of Denton, Texas (the "Program "); and WHEREAS, the Organization and the City of Denton desire to enter into an agreement to provide for the continuance of the Program which agreement is substantially in the same form as the agreement attached hereto and made a part hereof by reference (the "Public Service Agreement "); and WHEREAS, the Program is a part of the City's community development program as authorized by Chapter 373 of the Local Government Code and it helps to eliminate conditions detrimental to the public health and safety by providing opportunities and services to low to moderate persons in Denton that would otherwise not be available; and WHEREAS, the Program and the Public Service Agreement are necessary to preserve and protect the public health and safety of the City's residents by helping to insure that assistance is provided to aid in the investigation of child abuse cases and that victims of child abuse and non- offending families members have adequate client and clinical services; and WHEREAS, City Council finds that if the Program and the Public Service Agreement are not available, families would be at risk of further abuse and trauma, thereby creating a substantial health and safety risk for citizens of Denton; and WHEREAS, the Program is supervised and administered by professional personnel which maintain licenses as counselors or social workers; and WHEREAS, City Council finds that the Public Service Agreement and the expenditures provided for in the Agreement are exempt from competitive bidding as a procurement necessary to preserve or protect the public health or safety of the City's residents under Section 252.022(a)(2) of the Local Government Code and as a procurement for professional services under Section 252.022(a)(4) of the Local Government Code; and WHEREAS, the City Council of the City of Denton hereby finds that the Program and the Public Service Agreement serve important municipal and public purposes and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Public Service Agreement, attached hereto and incorporated herein, and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds not to exceed $105,891.00, as provided in the Public Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CHRIS WATTS, MAYOR Page 2 2015 -2016 SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, INCORPORATED This Agreement is hereby entered into by and between the CITY of Denton, Texas, a Texas municipal corporation, acting by and through its City Manager, hereinafter referred to as "CITY ", and Children's Advocacy Center for Denton County, Incorporated, 1854 Cain Drive, Lewisville, TX 75077, hereinafter referred to as "ORGANIZATION'; WHEREAS, the Denton Police Department has reviewed the proposal for services and has determined that ORGANIZATION performs an important service for the residents of Denton without regard to race, religion, color, age or national origin, and recommends the purchase of services; and WHEREAS, CITY has determined that the proposal for services merits assistance and can provide needed services to citizens of CITY and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, CITY has designated the Denton Police Department with assistance from the Community Development Division as the department responsible for the administration of this Agreement and all matters pertaining thereto; and 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. 1. TERM This Agreement shall commence on or as of October 1. 2015, and shall terminate on September 30, 2016, unless sooner terminated in accordance with Section 25 "Termination ". 2. RESPONSIBILITIES ORGANIZATION hereby accepts the responsibility for the performance of all services and activities described in the Scope of Services attached hereto as Exhibit 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 ORGANIZATION's executive officer to be ORGANIZATION's representative responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from ORGANIZATION, and approved by CITY. The Denton Chief of Police or designee will be CITY's representative responsible for the administration of this Agreement. The ORGANIZATION certified that the beneficiaries of the activities to be provided MUST reside in the City of Denton. Eligibility documentation must be included in each client's file. 3. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from CITY, ORGANIZATION agrees to the following terms and conditions: A. One hundred five thousand eight hundred ninety one dollars ($105,891.00) may be paid to ORGANIZATION by CITY, and the only expenditures reimbursed from these funds, shall be those in accordance with the project budget, attached hereto as Exhibit B and incorporated herein by reference, for those expenses listed in the scope of services as provided herein. ORGANIZATION shall not utilize these funds for any other purpose. B. It will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. It will permit authorized officials of CITY to review its books at any time. D. It will reduce to writing all of its rules, regulations, and policies and file a copy with CITY's Police Department along with any amendments, additions, or revisions whenever adopted. E. It will not enter into any contracts that would encumber CITY fiords for a period that would extend beyond the term of this Agreement. F. It will promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to the Denton Police Department or their appointed representative in Community Development. Page 1 of 13 G. It will appoint a representative who will be available to meet with CITY officials when requested. H. It will indemnify and hold harmless CITY from any and all claims and suits arising out of the activities of ORGANIZATION, its employees, and/or contractors. I. It will submit to CITY copies of year -end audited financial statements. 4. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. ORGANIZATION shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. 5. REPRESENTATIONS A. ORGANIZATION 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. T` he person or persons signing and executing this Agreement on behalf of ORGANIZATION, do hereby warrant and guarantee that he, she, or they have been billy authorized by ORGANIZATION to execute this Agreement on behalf of ORGANIZATION and to validly and legally bind ORGANIZATION 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 ORGANIZATION or the person signing the Agreement to enter into this Agreement. ORGANIZATION 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 Section. D. ORGANIZATION agrees that the funds and resources provided ORGANIZATION under the terms of this Agreement will in no way be substituted for fiends 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, ORGANIZATION had this Agreement not been executed. b. PERFORMANCE BY ORGANIZATION ORGANIZATION will provide, oversee, administer, and carry out all of the activities and services set out in the SCOPE OF SERVICES, attached hereto and incorporated herein for all purposes as Exhibit A, utilizing the funds described in Exhibit B, attached hereto and incorporated herein for all purposes and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Agreement. No modifications or alterations may be made in the Scope of Services without the prior written approval of the City's Chief of Police. 7. PAYMENTS A. Payments to ORGANIZATION. CITY shall pay to ORGANIZATION a maximum amount of money not to exceed one hundred five thousand eight hundred ninety one dollars ($145,891.00) for services rendered under this Agreement. CITY will pay these funds on a reimbursement basis to ORGANIZATION within 15 days after CITY has received supporting documentation. ORGANIZATION's failure to request reimbursement on a timely basis may jeopardize present or future funding. B. Excess Payment. ORGANIZATION 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 thereafter determines: 1. has resulted in overpayment to ORGANIZATION; 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. ORGANIZATION's reimbursement request for any one month period will not exceed one -tenth (1 /10) of any budgeted line items for costs as specified in Exhibit B. D. Deobligation of Funds/Reversion of Assets. In the event that actual expenditures deviate from ORGANIZATION's provision of a corresponding level of performance, as specified in Exhibit A, CITY hereby reserves the right to reappropriate or recapture any such under expended funds. If CITY finds that Page 2 of 13 ORGANIZATION is unwilling and/or unable to comply with any of the terms of this Contract, CITY may require a refund of any and all money expended pursuant to this Contract by ORGANIZATION, as well as any remaining unexpended funds which shall be refunded to CITY within ten working days of a written notice to ORGANIZATION to revert these financial assets. The reversion 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. Contract Close Out. ORGANIZATION shall submit the contract close out package 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 IS working days following the close of the contract period. ORGANIZATION shall utilize the form agreed upon by CITY and ORGANIZATION. 8. WARRANTIES ORGANIZATION 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 ORGANIZATION 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 ORGANIZATION. C. No litigation or legal proceedings are presently pending or threatened against ORGANIZATION. D. None of the provisions herein contravene or are in conflict with the authority under which ORGANIZATION is doing business or with the provisions of any existing indenture or agreement of ORGANIZATION. E. ORGANIZATION 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 ORGANIZATION is subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by ORGANIZATION 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. 9. COVENANTS A. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, ORGANIZATION shall not, without the prior written consent of the Community Development Administrator or her authorized representative: 1. Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of ORGANIZATION 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 ORGANIZATION 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 fiends paid to ORGANIZATION by CITY, unless CITY authorizes such transfer. Page 3 of 13 10. ALLOWABLE COSTS A. Costs shall be considered allowable only if incurred directly and specifically in the performance of and in compliance with this Agreement and in conformance with the standards and provisions of Exhibits A and B. B. Approval of ORGANIZATION's budget, Exhibit B, does not constitute prior written approval, even though certain items may appear herein. CITY's prior written authorization is required in order for the following to be considered allowable costs: I . Encumbrances or expenditures during any one month period which exceeds one -tenth 1/10 of the total budget as specified in Exhibit B. 2. CITY shall not be obligated to any third parties, including any subcontractors of ORGANIZATION, and CITY funds shall not be used to pay for any contract service extending beyond the expiration of this Agreement. 3. Out of town travel 4. Any alterations or relocation of the facilities on and in which the activities specified in Exhibit A are conducted. 5. Any alterations, deletions or additions to the Personnel Schedule incorporated in Exhibit B. 6. Costs or fees for temporary employees or services. 7. Any fees or payments for consultant services. 8. Fees for attending out of town meetings, seminars or conferences. Written requests for prior approval are ORGANIZATION's responsibility and shall be made within sufficient time to permit a thorough review by CITY. ORGANIZATION must obtain written approval by CITY prior to the commencement of procedures to solicit or purchase services, equipment, or real or personal property. Any procurement or purchase which may be approved under the terms of this Agreement must be conducted in its entirety in accordance with the provisions of this Agreement. C. Expenditures will not be reimbursed to ORGANIZATION for the purchase of real property or equipment. These are not allowable costs under this agreement. 11. MAINTENANCE OF RECORDS A. ORGANIZATION 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 Exhibit B attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. ORGANIZATION's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve ORGANIZATION of fiscal accountability and liability under -any other provision of this Agreement or any applicable law. ORGANIZATION shall include the substance of this provision in all subcontracts. B. ORGANIZATION agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years. C. Nothing in the above subsections shall be construed to relieve ORGANIZATION of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. D. AT any reasonable time and as often as CITY may deem necessary, the ORGANIZATION shall make available to CITY, or any of their authorized representatives, all of its records and shall permit CITY, or any of their authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said representatives. 12. REPORTS AND INFORMATION At such times and in such form as CITY may require, organization shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Agreement. ORGANIZATION shall submit quarterly beneficiary and financial reports to CITY no less than once each three months. The beneficiary report shall detail client information, including race, income, female head of household Page 4 of 13 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 1 of this Agreement. Unless the CITY has granted a written exemption, ORGANIZATION shall submit an audit conducted by independent examiners with ten days after receipt of such. 13. MONITORING & EVALUATION ORGANIZATION agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. ORGANIZATION agrees that CITY may cant' out monitoring and evaluation activities to ensure adherence by ORGANZIATION to the Scope of Services, and Program Goals and Objectives, which are attached hereto as Exhibit A, as well as other provisions of this Agreement. ORGANZIATION agrees to cooperate fully with CITY and provide data determined by CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities. ORGANIZATION agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. ORGANIZATION agrees to make available its financial records for review by CITY at CITY's discretion. In addition, ORGANIZATION agrees to provide CITY the following data and reports or copies thereof: A. All external or internal audits. ORGANIZATION shall submit a copy of the annual independent audit to CITY within ten days of receipt. B. All external or internal evaluation reports. C. Quarterly performance/beneficiary reports to be submitted in January, April, July and September, to include such information as requested by the CITY including but not limited to: number of persons or households assisted, race, gender, disability status and household income. Beneficiary reports shall be due to CITY within 15 working days after the completion of each quarter. D. ORGANIZATION agrees to submit no less than once each three months financial statements. Each statement shall include current and year -to -date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Financial reports shall be due to CITY within 15 working days after the completion of each quarter. E. An explanation of any major changes in program services. F. To comply with this section, ORGANIZATION agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. ORGANIZATION's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. ORGANIZATION agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for the period of time and under the conditions specified by the CITY. G. Nothing in the above subsections shall be construed to relieve ORGANIZATION of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. 14. DIRECTORS' MEETINGS During the term of this Agreement, ORGANIZATION shall deliver to CITY copses 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. ORGANIZATION understands and agrees that CITY's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of ORGANIZATION's governing body shall be available to CITY within ten days after Board approval. 15. INSURANCE A. ORGANIZATION shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Exhibit A are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" Page 5 of 13 coverage with CITY named as an additional insured. Upon request of ORGANIZATION, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. ORGANIZATION will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. . D. ORGANIZATION will maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by ORGANIZATION. All employees of ORGANIZATION 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 ORGANIZATION'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 ORGANIZATION. F. The policy or policies of insurance shall contain a clause which requires that City and ORGANIZATION be notified in writing of any cancellation of change in the policy at least 30 days prior to such change or cancellation. 16. CIVIL RIGHTS / EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. ORGANIZATION shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. The ORGANIZATION shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, national origin, gender, age or disability. The ORGANIZATION will take affirmative action to insure that all employment practices are free from such discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. B. ORGANIZATION shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. The ORGANIZATION 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 1 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 11375 and 12086. C. ORGANIZATION will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal n:les and regulations. D. In the event of ORGANIZATION's non - compliance with the non - discrimination requirements, CITY may cancel or terminate the Agreement in whole or in part, and ORGANIZATION may be barred from further contracts with CITY. 17. PERSONNEL POLICIES Personnel policies shall be established by ORGANIZATION and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY's personnel policies, procedures, and practices, including policies 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 ORGANIZATION and by CITY 18. CONFLICT OF INTEREST A. ORGANIZATION covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. ORGANIZATION 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. ORGANIZATION further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of Page 6 of 13 being motivated by desire for private gain for himself/herself, or others; particularly 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. 19. NEPOTISM ORGANIZATION 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 ORGANIZATION, or is a member of ORGANIZATION's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in -laws, aunt, uncle, nephew, niece, stepparent, stepchild, half - brother and half- sister. 20. PUBLICITY A. Where such action is appropriate, ORGANIZATION shall publicize the activities conducted by ORGANIZATION under this Agreement. In any news release, sign, brochure, or other advertising medium, disseminating information prepared or distributed by or for ORGANIZATION, the advertising medium shall state that City of Denton funding has made the services possible. 21. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by froth parties, except when the terms of this Agreement expressly provide that another method shall be used. B. ORGANIZATION may not make changes to the budget set forth in Exhibit B without prior written approval of the Police Chief. ORGANIZATION 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 addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. ORGANIZATION will submit revised budget and program information, whenever the level of funding for ORGANIZATION or the program(s) described herein is altered according to the total levels contained in any portion of Exhibit 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 modifications 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 Exhibit A which may include an increase or decrease in the amount of ORGANIZATION's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget Detail incorporated in Exhibit B shall require the prior written approval of CITY. G. ORGANIZATION 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. ORGANIZATION shall notify CITY of any changes in personnel or governing board composition. 1. It is expressly understood that neither the performance of Exhibit A for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. 22. SUSPENSION OF FUNDING Upon determination by CITY of ORGANIZATION'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 notice to ORGANIZATION, withhold further payments to ORGANIZATION. Such notice may be given by mail to the Executive Officer and the Board of Directors of ORGANIZATION. The notice shall set forth the default or failure alleged, and the action required for cure. Page 7 of 1'3 The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed 30 calendar days. At the end of the suspension period, if CITY determines the default or defici .-ney has been satisfied, ORGANIZATION may be restored to full compliance status and paid all eligible funds vdthheld or impounded during the suspension period. If however, CITY determines that ORGANIZATION has nat come into compliance, the provisions of Section 25 may be effectuated. 23. 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. ORGANIZATION's failure to attain compliance during any prescribed period of suspension as provided in Section 24. 2. ORGANIZATION's failure to materially comply with any of the terms of this Agreement. 3. ORGANIZATION's violation of covenants, agreements or guarantees of this Agreement. 4. Termination or reduction of funding by the City of Denton. 5. Finding by CITY that ORGANIZATION: a. is in such unsatisfactory financial condition as to endanger performance under this Agreement; b. has allocated inventory to this Agreement substantially exceeding reasonable requirements; c. is delinquent in payment of taxes, or of costs of performance ofthis Agreement in the ordinary course of business. 6. Appointment of a trustee, receiver or liquidator for all or substantial part of ORGANIZATION's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against ORGANIZATION. 7. ORGANIZATION'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. 9. ORGANIZATION's violation of any law or regulation to which ORGANIZATION is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify ORGANIZATION in writing of the decision to terminate and the effective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified in Exhibit B. B. CITY may terminate this Agreement for convenience at any time. If CITY terminates this Agreement for convenience, ORGANIZATION 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 ORGANIZATION covered by the Agreement,_ less payments previously made. C. ORGANIZATION may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which ORGANIZATION depends for performance hereunder. ORGANIZATION may opt, within the limitations of this Agreement, to seek-an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a b-each of contract as defined herein or as defined in a contract between ORGANIZATION and the funding source in question. ORGANIZATION may terminate this Agreement upon the dissolution of ORGANIZATION's organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, ORGANIZATION shall cancel, withdraw or otherwise terminate any outstanding orders or subcontracts, which relate to the performance of this Agreement. CITY shall not be liable to ORGANIZATION or ORGANIZATION's creditors for any expenses, 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, ORGANIZATION shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by Page 8 of 13 ORGANIZATION, and CITY may withhold any reimbursement to ORGANIZATION until such time as the exact amount of damages due to CITY from ORGANIZATION is agreed upon or otherwise determined. 24. 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 ORGANIZATION, ORGANIZATION 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, basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail 25. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with ORGANIZATION as an independent contractor and that as such, ORGANIZATION shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of ORGANIZATION. B. ORGANIZATION agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, 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 or employees. 26. NON - RELIGIOUS ACTIVITIES The ORGANIZATION 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. 27. MISCELLANEOUS A. ORGANIZATION 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. 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 ORGANIZATION shall become the property of CITY upon receipt. D. Debarment: ORGANIZATION certifies that they are not listed on the Excluded Parties List System (EPLS), which list the debarred, suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549 and 24 CFR Part 24. E. In no event shall any payment to ORGANIZATION 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 default which may then or subsequently be committed by ORGANIZATION. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. F, This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this 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 effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. Page 9 of 13 G. 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, will have the final authority to render or to secure an interpretation. H. For purposes of this Agreement, Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to ORGANIZATION or CITY, as the case may be, at the following addresses: CITY ORGANIZATION City Manager Children's Advocacy Center for Denton County, Inc. City of Denton Attn: Executive Director 215 E. McKinney 1854 Cain Drive Denton, Texas 76201 Lewisville, TX 75077 I. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM; ANITA BURGESS, CITY ATTORNEY BY: CITY OF DENTON BY: GEORGE C. CAMPBELL, CITY MANAGER CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, INCORPORATED BY: EXECUTIVE DIRECTOR ATTEST: BY: , BOARD SECPATARY Page 10 of 13 Exhibit A Scope of Services The Scope of Services under this Agreement shall be as follows: SECTION I — ACTMTY ORGANIZATION shall provide services to minimize the trauma of child abuse to the children and non - offending family members by offering victim services that include client and clinical services. Client Services provide justice and support by coordinating the investigative process among the Denton Police Department and partner agencies and by assisting families with crime victim services. The Clinical Services program provides specialized and comprehensive clinical services. Beneficiaries of the services to be provided hereunder must reside in the city of Denton and ORGANIZATION shall provide services to child victims and their non - offending family members. SECTION 11 — SERVICES In or er to coin lete the agreed u on activily ORGANIZATION shall pLovide the following services to child abuse victims, or children who have witness a violent crime and non - offending family members • Provide facility and staff to coordinate the investigative process among the Denton Police Department and partner agencies and to conduct: Client Services: c on -site forensic interview and assessments • multidisciplinary case reviews to insure coordination and progress of investigations by partner agencies • social service referrals and assistance with victim compensation • social histories and support • liaison between the families and investigative agencies • referrals to community resources, and seasonal assistance programs Clinical Services: • individual, group, play and pet therapy • crisis counseling • consultation with the multidisciplinary team • court preparation services • psychological testing SECTION III —UNIT OF SERVICE A unit of service will be the tool by which the CITY and the ORGANIZATION can measure performance under this agreement. A unit of service shall be defined as client or clinical service for a child victim or non - offending family members including but not limited to the services as described in Section 11— Services. SECTION IV — GOALS ORGANIZATION shall provide not less than 2,250 units of service to city of Denton residents during the contract year. The total number of units of service required constitutes the performance target for the ORGANIZATION under this Agreement. The ORGANIZATION will provide services to approximately 250 children ages zero to seventeen and non - offending family members during the term of this Agreement. ORGANIZATION shall provide the services listed in this Agreement within the monetary limits contained in Exhibit B, entitled "Budget", attached hereto and incorporated by reference herein. In no event shall compensation to the ORGANIZATION exceed the lesser of the ORGANIZATION'S costs attributable to the work performed as stated herein, or sum of one hundred five thousand eight hundred ninety one dollars ($105,891.00). Page I 1 of 13 SECTION V — OUTCOMES Direct Service Outcome The services provided as the terms of this agreement will assist the ORGANIZATION in providing comprehensive services to child abuse victims, or children who have witness a violent crime, and non - offending family members. The expected benefits of the ORGANIZATION'S delivery of comprehensive services will provide a reduction in trauma and promotion of emotional healing through: • ORGANIZATION will serve at least 250 city of Denton clients and at least 700/9 of those referred for counseling will receive counseling services. • At least 20% of children served will continue in The Advocacy Center's clinical program. Community Outcome Children's Advocacy Center for Denton County assists the City of Denton in improving availability and accessibility of services promoting strong, supportive relationships for families, neighborhoods, and communities to promote a suitable living environment., as outlined in the 2010 -2014 City of Denton Consolidated Plan. The Children's Advocacy Center for Denton County provides services necessary to (1) expand the- current system of -case coordination and centralize information among service providers and (2) continue allocation of scarce resources to meet urgent community needs. Children's Advocacy Center for Denton County benefits the citizens of the City of Denton and supports a coordinated effort to maximize community resources by: • Working in conjunction with the Denton Police Department, Child Protective Services, and appropriate service providers on the investigation and prosecution of cases. • Promoting collaboration between agencies through the use of their facilities for interviews, office space, case reviews, and other services. • Offering avariety oftherapy sessions to assist victims and non - offending family members in the emotional healing process. Page 12 of 13 Exhibit B Budget Allowable Ez enditure Budget Amount Fee for Service $45.00 per 2,250 units of direct service $105,891.00 Total $105,891.00 Children's Advocacy Center for Denton County will be reimbursed monthly on a fee for service basis for services provided to residents of the city of Denton. Fees for particular services are described above. Page 13 of 13 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1081, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Air Fair, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($11,290 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $11,290 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departmentsUegahour documents \ordinances \15\hot funds pyWair fair ordinance.doc Exhibit 1 AIR��IJ�h[y�f�[�I AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AIR FAIR, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Air Fair, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 52015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FOR M ANITA BURGESS; CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON AIR FAIR, INC. (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Air Fair, Inc., a legal entity incorporated under the laws of the State of Texas (the "AIR FAIR "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, AIR FAIR is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with AIR FAIR, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and AIR FAIR agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by AIR FAIR under this Agreement, CITY agrees to pay to AIR FAIR a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to AIR FAIR sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Denton Air Fair, Inc PY2016 - Page I (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to AIR FAIR an amount of money in each contract year equal to the lesser amount of. Fifty -Three Hundredths percent (0.53 %) of the annual base payment amount, or the fixed contract amount of Eleven Thousand Two Hundred and Ninety Dollars ($11,290). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.53% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce AIR FAIR's current budget at any time during the contract period. Each payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to AIR FAIR of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25th of January 2016 and after the 25th of April 2016. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of AIR FAIR. Denton Air Fair, Inc PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that AIR FAIR's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to AIR FAIR of the agreed payments of hotel tax funds specified above, AIR FAIR agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the AIR FAIR may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in AIR FAIR's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the AIR FAIR for which hotel tax funds may be used shall not exceed that portion of the AIR FAIR's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) AIR FAIR shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of AIR FAIR in which the hotel tax funds shall be used by AIR FAIR. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to AIR FAIR any hotel tax revenues as set forth in Section I of this contract during any program year Denton Air Fair, Inc PY2016 - Page 3 of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) AIR FAIR acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in AIR FAIR with respect to the hotel tax funds paid by CITY to AIR FAIR under this Agreement. AIR FAIR shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of AIR FAIR, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of AIR FAIR, without approval of the City Council by ordinance. 3.2 Separate Accounts. AIR FAIR shall maintain any hotel tax funds paid to AIR FAIR by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. AIR FAIR shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by AIR FAIR. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, AIR FAIR shall make such financial records available for inspection and review by the party making the request. AIR FAIR understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, AIR FAIR shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. AIR FAIR shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. AIR FAIR shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of AIR FAIR's Board of Directors, as well as any other meeting of any constituency of AIR FAIR, at which this Agreement or any matter subject to this Agreement shall be considered. Denton Air Fair, Inc PY2016 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse AIR FAIR for any contractual obligations of AIR FAIR undertaken by AIR FAIR in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse AIR FAIR, or to assume the performance of any contractual obligations of AIR FAIR, for or under any contract entered into by AIR FAIR as contemplated herein, shall not exceed 66 2/3% of the current payment. (c) Further, upon termination pursuant to ¶4.2(a), AIR FAIR will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. AIR FAIR will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by AIR FAIR after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: Denton Air Fair, Inc PY2016 - Page 5 (a) The termination of the legal existence of AIR FAIR; (b) The insolvency of AIR FAIR, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by AIR FAIR for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or AIR FAIR for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of AIR FAIR to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, AIR FAIR agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by AIR FAIR with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that AIR FAIR enters into any arrangement, contractual or otherwise, with such other entity, person or organization, AIR FAIR shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. AIR FAIR shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. AIR FAIR shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and AIR FAIR shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. AIR FAIR shall not be considered a partner or joint venturer with CITY, nor shall AIR FAIR be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. AIR FAIR AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY Denton Air Fair, Inc PY2016 - Page 6 OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY AIR FAIR OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF AIR FAIR, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. AIR FAIR shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 AIR FAIR Amanda Addington Denton Air Fair, Inc. PO Box 2800 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and AIR FAIR and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of Denton Air Fair, Inc PY2016 - Page 7 competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. AIR FAIR shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City-owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000/$100,000) OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City-owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2015. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DENTON AIR FAIR, INC. Denton Air Fair, Inc PY2016 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: Denton Air Fair, Inc PY2016 - Page 9 Exhibit A Denton Air Fair, Inc. Denton Air Show 2016 Budget 2016 ADVERTISING Radio $5,890 Printed Matter 3,000 Internet 2,400 Total $11,290 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1082, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($16,572 - Hotel Occupancy Tax Committee recommends approval 3- 0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $16,572 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds py16 \b1ack chamber ordinance.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY 11 APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Black Chamber of Commerce, a legal entity existing under the laws of the State of Texas (the "CHAMBER"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CHAMBER is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CHAMBER, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CHAMBER agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CHAMBER under this Agreement, CITY agrees to pay to CHAMBER a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CHAMBER, sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Black Chamber HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CHAMBER an amount of money in each contract year equal to the lesser amount of Seventy -Seven Hundredths percent (0.77 %) of the annual base payment amount, or the fixed contract amount of Sixteen Thousand Five Hundred and Seventy - Two Dollars ($16,572). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 0.77% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CHAMBER's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to CHAMBER of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CHAMBER. Black Chamber HOT Funding PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that CHAMBER's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CHAMBER of the agreed payments of hotel tax funds specified above, CHAMBER agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CHAMBER may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in CHAMBER's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CHAMBER for which hotel tax funds may be used shall not exceed that portion of the CHAMBER's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CHAMBER shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of CHAMBER funded by hotel tax revenues. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to CHAMBER any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. Black Chamber HOT Funding PY2016 - Page 3 (b) CHAMBER acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in CHAMBER with respect to the hotel tax funds paid by CITY to CHAMBER under this Agreement. CHAMBER shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. (c) Upon the application or consent of CHAMBER, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CHAMBER, without approval of the City Council by ordinance. 3.2 Separate Accounts. CHAMBER shall maintain any hotel tax funds paid to CHAMBER by CITY in a separate account, or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CHAMBER shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CHAMBER. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CHAMBER shall make such financial records available for inspection and review by the party making the request. CHAMBER understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CHAMBER shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds, pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., front and back copies of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CHAMBER shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CHAMBER shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CHAMBER's Board of Directors, as well as any other meeting of any constituency of CHAMBER, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter Black Chamber HOT Funding PY2016 - Page 4 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CHAMBER for any contractual obligations of CHAMBER undertaken by CHAMBER in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CHAMBER or to assume the performance of any contractual obligations of CHAMBER for or under any contract entered into by CHAMBER as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CHAMBER will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by the City; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CHAMBER will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by CHAMBER after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CHAMBER; (b) The insolvency of CHAMBER, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CHAMBER for the benefit of creditors; Black Chamber HOT Funding PY2016 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CHAMBER for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of CHAMBER to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶ 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, CHAMBER agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CHAMBER with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CHAMBER enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CHAMBER shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CHAMBER shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CHAMBER shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and CHAMBER shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CHAMBER shall not be considered a partner or joint venturer with CITY, nor shall CHAMBER be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. CHAMBER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CHAMBER OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT Black Chamber HOT Funding PY2016 - Page 6 OR INTENTIONAL ACTS OF CHAMBER, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CHAMBER shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY CHAMBER City Manager Denton Black Chamber of Commerce City of Denton John Baines 215 E. McKinney P.O. Box 51026 Denton, TX 76201 Denton, Texas 76206 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CHAMBER and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Black Chamber HOT Funding PY2016 - Page 7 5.12 Insurance. CHAMBER shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: Bv: JENNIFER WALTERS, CITY SECRETARY ATTEST: LON 2015. THE CITY OF DENTON, TEXAS Bv: GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO ANITA BURGESS, CITY ATTORNW BLACK CHAMBER OF Ch ti�5_ector ir APPROVED AS TO LEGAL FORM: By: Secretary Black Chamber HOT Funding PY2016 - Page 8 Exhibit A Denton Black Chamber of Commerce Denton Blues Festival Budget 2016 ADVERTISING Internet $1,500 Radio 5,500 Billboards 5,500 Printed Matter 1,072 Advertising $13,572 ART Artists $3,000 Art $3,000 Total $16,572 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1083, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Market, Inc. (PY2016)providing for the payment and use of hotel tax revenue; and providing an effective date. ($10,500 - Hotel Occupancy Tax Committee recommends approval 3- 0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $10,500 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments\legal \our documents \ordinances \15\hot funds pyWcommunity market ordinance.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COMMUNITY MARKET, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, TEX. TAX CODE §351.101 (the "HOT Statute ") authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, Denton Community Market, Inc. ( "MARKET "), a Texas domestic nonprofit corporation in good standing, has applied for hotel tax funding, and has provided data demonstrating that about 25% or more of individuals attending Market events are from outside Denton; and WHEREAS, MARKET has proposed a budget seeking a portion of hotel occupancy tax revenues, to purchaser advertising targeted to individuals outside Denton, in hopes of further increasing attendance by visitors from outside Denton at these events, and further promoting tourism and the convention and hotel industry as a result; and WHEREAS, MARKET has agreed to undertake the fiduciary obligation of ensuring that any such funding would be expended in full compliance with the HOT Statute, and has further assured its willingness to conduct operations in full compliance with the attached Agreement; and WHEREAS, based upon the application, representations, and proposed budget submitted by MARKET, the Council therefore finds that such an expenditure of hotel tax revenue would satisfy the purposes of the HOT Statute; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Community Market for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY MARKET, INC. (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Community Market, a legal entity incorporated under the laws of the State of Texas (the "MARKET "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a)(3) and (a)(4) authorize the expenditure of municipal hotel tax revenues for advertising and promotional programs to attract tourists to the municipality or its vicinity, and in the promotion, improvement and application of the arts to promote tourism and the convention and hotel industry; and WHEREAS, MARKET is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with MARKET, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and MARKET agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by MARKET under this Agreement, CITY agrees to pay to MARKET a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to MARKET sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Denton Community Market PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 20th day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31s, June 30`', September 30th, and December 3151 of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to MARKET an amount of money in each contract year equal to the lesser amount of. Forty -Nine Hundredths percent (0.49 %) of the annual base payment amount, or the fixed contract amount of Ten Thousand Five Hundred Dollars ($10,500). This amount will be paid in one lump sum after the 25" of January 2016. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce MARKET's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to MARKET of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of MARKET. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Denton Community Market PY2016 - Page 2 (c) CITY may withhold further allocations if CITY determines that MARKET'S expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to MARKET of the agreed payments of hotel tax funds specified above, MARKET agrees to use such hotel tax funds only for: (1)advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) ; and (2) encourage promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms, as authorized by TEX. TAX CODE §351.101(a)(4). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the MARKET may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in MARKET'S budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the MARKET for which hotel tax funds may be used shall not exceed that portion of the MARKET's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) MARKET shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of MARKET in which the hotel tax funds shall be used by MARKET. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to Denton Community Market PY2016 - Page 3 MARKET any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) MARKET acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in MARKET with respect to the hotel tax funds paid by CITY to MARKET under this Agreement. MARKET shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of MARKET, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of MARKET, without approval of the City Council by ordinance. 3.2 Separate Accounts. MARKET shall maintain any hotel tax funds paid to MARKET by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. MARKET shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by MARKET. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, MARKET shall make such financial records available for inspection and review by the party making the request. MARKET understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, MARKET shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. MARKET shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. MARKET shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of MARKET's Board of Directors, as well as any other meeting of any constituency of MARKET, at which this Agreement or any matter subject to this Agreement shall be considered. Denton Community Market PY2016 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse MARKET for any contractual obligations of MARKET undertaken by MARKET in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse MARKET, or to assume the performance of any contractual obligations of MARKET, for or under any contract entered into by MARKET as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), MARKET will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. MARKET will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by MARKET after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: Denton Community Market PY2016 - Page 5 (a) The termination of the legal existence of MARKET; (b) The insolvency of MARKET, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by MARKET for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or MARKET for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of MARKET to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, MARKET agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by MARKET with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that MARKET enters into any arrangement, contractual or otherwise, with such other entity, person or organization, MARKET shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. MARKET shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. MARKET shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and MARKET shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. MARKET shall not be considered a partner or joint venturer with CITY, nor shall MARKET be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. MARKET AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY Denton Community Market PY2016 - Page 6 OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY MARKET OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF MARKET, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. MARKET shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton Community Market, Inc. Vicki Oppenheim PO Box 30507 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and MARKET and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of Denton Community Market PY2016 - Page 7 competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. MARKET shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000) OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of , 2015. THE CITY OF DENTON, TEXAS M_ GEORGE C. CAMPBELL, CITY MANAGER ATTEST: APPROVED AS TO LEGAL FORM: By; JENNIFER WALTERS, (--- ANITA BURGES,9 CITY SECRETARY CITY ATTORNEY DENTON COMMUNITY MARKET, INC. By: �/" (/ _9=:� ( V, rte' ONW, ) Denton Community Market PY2016 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: Denton Community Market PY2016 - Page 9 Exhibit A Denton Community Market Seasonal Operations Budget 2016 ADVERTISING Regional Publications $ 3,500 Printed Matter 524 Contract Labor 476 ART Contract Labor (Performer Coordinator) $3,000 Contract Labor (Sound Coordinator) 3,000 Total $10,500 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1084, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($25,000 - Hotel Occupancy Tax Committee recommends approval 3- 0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $25,000 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15 \hot funds pyl6 \dct ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COMMUNITY THEATRE, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY THEATRE, INC. (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Community Theatre, Inc., a legal entity incorporated under the laws of the State of Texas (the "THEATRE "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. DCT HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to THEATRE an amount of money in each contract year equal to the lesser amount of: One and Seventeen Hundredths percent (1.17 %) of the annual base payment amount, or the fixed contract amount of Twenty -Five Thousand Dollars ($25,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.17% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce THEATRE's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to THEATRE of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of THEATRE. DCT HOT Funding PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the THEATRE may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in THEATRE's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the THEATRE for which hotel tax funds may be used shall not exceed that portion of the THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of THEATRE in which the hotel tax funds shall be used by THEATRE. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to THEATRE any hotel tax revenues as set forth in Section I of this contract DCT HOT Funding PY2016 - Page 3 during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) THEATRE acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of THEATRE, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of THEATRE, without approval of the City Council by ordinance. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, THEATRE shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, THEATRE shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. THEATRE shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE, at which this Agreement or any matter subject to this Agreement shall be considered. DCT HOT Funding PY2016 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE, or to assume the performance of any contractual obligations of THEATRE, for or under any contract entered into by THEATRE as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by THEATRE after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: DCT HOT Funding PY2016 - Page 5 (a) The termination of the legal existence of THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of THEATRE to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶T4.3 or 4.4, THEATRE agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. THEATRE shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and THEATRE shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with CITY, nor shall THEATRE be considered, nor in any manner hold itself out as, an agent or official representative of CITY. DCT HOT Funding PY2016 - Page 6 5.3 Indemnification. THEATRE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 THEATRE Denton Community Theatre, Inc. ATTN: Mike Barrow 214 West Hickory Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and THEATRE and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. DCT HOT Funding PY2016 - Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. THEATRE shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: 2015. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS-T�ZEGAL FORM: By: JENNIFER WALTERS, RGESS, CITY SECRETARY CITY ATTORNEY DENTON C ITY THEATRE, INC. By: Chairman/Director DCT HOT Funding PY2016 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: DCT HOT Funding PY2016 - Page 9 Denton Community Theatre Season Performances Budget 2016 ADVERTISING Exhibit A Radio $1,000 Printed Matter 8,000 Internet 14,000 Billboard 2,000 Total $25,000 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1089, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($1,117,395 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $1,117,395 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departments \legal \our documents \ordinances \15\hot funds pyI ftharnber ordinance.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION AND VISITORS BUREAU) FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: AT BY r :- CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION & VISITORS BUREAU) (PY 2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Chamber of Commerce (Convention & Visitors Bureau), a non - profit corporation incorporated under the laws of the State of Texas (the "BUREAU "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, TEX. TAX CODE §351.101(a)(1) authorizes the expenditure of municipal hotel tax revenue for construction, improvement, enlarging, equipping, repairing, operating, and maintaining visitor information centers; and WHEREAS, BUREAU is well equipped to perform those activities through its Denton Convention and Visitor's Bureau; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with BUREAU, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and BUREAU agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by BUREAU under this Agreement, CITY agrees to pay to BUREAU a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to BUREAU sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City CVB PY2016 HOT Fund Contract -- Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to BUREAU an amount of money in each contract year equal to the lesser amount of Fifty -Two and Nine Hundredths percent (52.09 %) of the annual base payment amount, or the fixed contract amount of One Million, One Hundred Seventeen Thousand Three Hundred and Ninety -Five Dollars ($1,117,395). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 52.09% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce BUREAU's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to BUREAU of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. CVB PY2016 HOT Fund Contract -- Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of BUREAU. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that BUREAU's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to BUREAU of the agreed payments of hotel tax funds specified above, BUREAU agrees to use such hotel tax funds only for: (1) advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity as authorized by TEX. TAX CODE §351.101(a); and (2) constructing, improving, enlarging, equipping, repairing, operating, and maintaining a visitor information center on the downtown Denton Square, as authorized by TEX. TAX CODE §351.101(a)(1). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by BUREAU may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in BUREAU's budget (Exhibit "A ") and each are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) BUREAU agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). BUREAU shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶ ¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. CVB PY2016 HOT Fund Contract -- Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) BUREAU shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of BUREAU funded by hotel tax revenue. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to BUREAU any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) BUREAU acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in BUREAU with respect to the hotel tax funds paid by CITY to BUREAU under this Agreement. BUREAU shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. (c) Upon the application or consent of BUREAU, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in 11.2(b), extend the term, or otherwise alter the performance obligations of BUREAU, without approval of the City Council by ordinance. 3.2 Separate Accounts. BUREAU shall maintain any hotel tax funds paid to BUREAU by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. BUREAU shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by BUREAU. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, BUREAU shall make such financial records available for inspection and review by the party making the request. BUREAU understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOv'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, BUREAU shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). BUREAU shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. BUREAU shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. CVB PY2016 HOT Fund Contract -- Page 4 3.5 Notice of Meetings. BUREAU shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of BUREAU's Board of Directors, as well as any other meeting of any constituency of BUREAU at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse BUREAU for any contractual obligations of BUREAU undertaken by BUREAU in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse BUREAU or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by BUREAU as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to 14.2(a), BUREAU will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. BUREAU will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by BUREAU after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. CVB PY2016 HOT Fund Contract -- Page 5 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of BUREAU; (b) The insolvency of BUREAU, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by BUREAU for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or BUREAU for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of BUREAU to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, BUREAU agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by BUREAU with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that BUREAU enters into any arrangement, contractual or otherwise, with such other entity, person or organization, BUREAU shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. BUREAU shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. BUREAU shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and BUREAU shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. BUREAU shall not be considered a partner or joint venturer with CITY, nor shall BUREAU be considered nor in any manner hold itself out as an agent or official representative of CITY. CVB PY2016 HOT Fund Contract -- Page 6 5.3 Indemnification. BUREAU AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY BUREAU OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF BUREAU, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. BUREAU shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY BUREAU City Manager Denton Chamber of Commerce City of Denton Denton Convention & Visitors Bureau 215 E. McKinney Kim Phillips Denton, TX 76201 P.O. Box 1719 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and BUREAU and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. CVB PY2016 HOT Fund Contract -- Page 7 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. BUREAU shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, 2. $1,000,000 Event Insurance, covering all events taking place on City -owned property, 3. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000 /$100,000), 4. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served, and 5. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2015. THE CITY OF DENTON, TEXAS Lo GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: : ANITA BURGESS, CITY ATTORNEY DENTON CHAMBER OF COMMERCE By: zzz,�LL President CVB PY2016 HOT Fund Contract -- Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: CVB PY2016 HOT Fund Contract -- Page 9 Exhibit A Denton Chamber of Commerce Denton Convention and Visitors Bureau Request 2016 ADVERTISING $50,000 General Administration: 12,000 Salaries and Benefits $162,000 Liability Insurance 800 Travel & Training 16,000 Memberships & Subscriptions 8,000 Computer Equipment 30,000 Copy Machine 5,000 Office Supplies 3,500 Telephone 15,000 Postage 6,000 Office Rent 15,150 $261,450 Program Advertising: Print Advertising $50,000 DentonRadio.com 12,000 Internet Marketing 30,000 Tourism Promotional Material 10,000 Brochures 10,000 Travel & Trade Shows 20,000 Tourism & PR Services 7,000 Event Magazine 60,345 Event Magazine Distribution /Circulation 3,500 $202,845 Communication & Social Media Marketing: Website $10,000 Email Communications 2,500 Social Media Marketing 76,000 Salary and Benefits 180,000 Memberships & Professional Development 10,000 $278,500 Convention & Group Sales & Services: Meeting /Convention /Sports Marketing Advertising ( Print ,Website,Digital,SocialMedia) $8,000 Sales & Marketing Missions 1,000 Trade Shows & Conferences 7,500 Research /Mining /Lead Generating /Tracking 6,000 Site Visits & Family Tours 1,000 Servicing 1,000 Bid Fees S00 Memberships & Professional Development 2,000 Group Tour Marketing Advertising ( Print ,Website,Digital,SocialMedia) $4,500 Sales & Marketing Missions 5,000 Trade Shows & Conferences 12,000 Site Visits & Family Tours 1,500 Servicing 1,000 Memberships & Professional Development 2,100 Salary and Benefits $111,000 Travel & Training 10,500 $174,600 Subtotal $917,395 Downtown Welcome Center & Denton Store Lease $57,500 Computers / IT 6,000 Maintenance (janitorail and building needs) 12,000 Insurance 5,000 Office Supplies & Equipment 6,000 Full -time Manager 60,000 Part -Time Assistant & Paid Interns 30,000 Beginning Merchandise 23,500 $200,000 Total Budget $1,117,395 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1090, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton County, Texas (Denton County Office of History and Culture) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($150,000 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $150,000 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \CODAD \Departments \Legal \Our Documents \Ordinances \15\HOT Funds PY16\Denton County Ordinance. doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE IN SUPPORT OF THE DENTON COUNTY OFFICE OF HISTORY AND CULTURE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity to visit preserved historic sites and museums; and WHEREAS, the County of Denton, Texas is well equipped to perform those activities; and WHEREAS, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate by contract with the County of Denton, Texas, as a governmental entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; and WHEREAS, both the City of Denton, Texas and the County of Denton, Texas have a secondary source of authority to enter into an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas Government Code, as: the agreement is authorized by both governmental bodies; the agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by City of Denton, Texas out of current revenues; the compensation is fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Government Code, which each party is authorized to perform individually; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an interlocal agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Denton County Office of History and Culture, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY li APPROVED AS TO LEGAL 43rR -- ANITA BURGESS -rr ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY, TEXAS ( DENTON COUNTY OFFICE OF HISTORY AND CULTURE)) (PY 2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and County of Denton, Texas, a governmental entity existing under the laws of the State of Texas, contracting on behalf of its Office of History and Culture (collectively, the "COUNTY "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality, or its vicinity; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with COUNTY, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; WHEREAS, both CITY and COUNTY have a secondary source of authority to enter into the Agreement as an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas Government Code, as: the Agreement is authorized by both governmental bodies; the Agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by CITY out of current revenues; the compensation is fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Government Code, which each party is authorized to perform individually; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and COUNTY agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by COUNTY under this Agreement, CITY agrees to pay to COUNTY a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to COUNTY sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: County PY2016 HOT Fund Contract -- Page 1 (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (Le., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30`h, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to COUNTY an amount of money in each contract year equal to the lesser amount of Six and Ninety -Nine Hundredths percent (6.99 %) of the annual base payment amount, or the fixed contract amount of One Hundred Fifty Thousand Dollars ($150,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.99% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce COUNTY's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to COUNTY of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 2511 day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be County PY2016 HOT Fund Contract -- Page 2 held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of COUNTY. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that COUNTY's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to COUNTY of the agreed payments of hotel tax funds specified above, COUNTY agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by COUNTY may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in COUNTY's budget (Exhibit "A ") and each are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) COUNTY agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). COUNTY shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶ ¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. County PY2016 HOT Fund Contract -- Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) COUNTY shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of COUNTY funded by hotel tax revenue. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to COUNTY any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) COUNTY acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in COUNTY with respect to the hotel tax funds paid by CITY to COUNTY under this Agreement. COUNTY shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. (c) Upon the application or consent of COUNTY, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of COUNTY, without approval of the City Council by ordinance. 3.2 Separate Accounts. COUNTY shall maintain any hotel tax funds paid to COUNTY by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. COUNTY shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by COUNTY. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, COUNTY shall make such financial records available for inspection and review by the party making the request. COUNTY understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOv'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, COUNTY shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). COUNTY shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. COUNTY shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. County PY2016 HOT Fund Contract -- Page 4 3.5 Notice of Meetings. COUNTY shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of COUNTY's Commissioners Court, as well as any other meeting of any constituency of COUNTY at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse COUNTY for any contractual obligations of COUNTY undertaken by COUNTY in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T$2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse COUNTY or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by COUNTY as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), COUNTY will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. COUNTY will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by COUNTY after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services County PY2016 HOT Fund Contract -- Page 5 contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of COUNTY; (b) The insolvency of COUNTY, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by COUNTY for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or COUNTY for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of COUNTY to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, COUNTY agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by COUNTY with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that COUNTY enters into any arrangement, contractual or otherwise, with such other entity, person or organization, COUNTY shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. COUNTY shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. COUNTY shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and COUNTY shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. COUNTY shall not be considered a partner or joint venturer with CITY, nor shall County PY2016 HOT Fund Contract -- Page 6 COUNTY be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. COUNTYAGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY COUNTYOF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OFCOUNTY, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. COUNTY shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY COUNTY City Manager Denton County Office of History and Culture City of Denton Peggy Riddle 215 E. McKinney 110 West Hickory Denton, TX 76201 Denton, TX 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and COUNTY and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. County PY2016 HOT Fund Contract -- Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. COUNTY shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000), 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: al JENNIFER WALTERS, CITY SECRETARY 2015. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER County PY2016 HOT Fund Contract -- Page 8 DENTON COUNTY, TEXAS By: COUNTY JUD ATTEST: APPROVED AS TO LEGAL FORM: NA By: Secretary '— ,,.,�STFU T TTORNEY County PY2016 HOT Fund Contract -- Page 9 Exhibit A Denton County Office of History and Culture Budget 2016 ADVERTISING Magazines, Newspaper & Internet $9,000 Visitors Guide 1,200 Brochures 9,800 Total Advertising $20,000 HISTORICAL Archival Supplies $10,000 New Exhibits 18,000 Restoration of Taylor Farm House & Barn 15,000 Relocation and Foundation of Woods Home 50,000 Contract Labor 37,000 Total Historical $130,000 Total $150,000 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1091, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($16,086 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $16,086 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departments \legal \our documents \ordinances \15\hot funds py16 \dog days ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Denton Dog Days, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: j.r— . — ___ ---- F CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, INC. (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Dog Days, Inc., a legal entity incorporated under the laws of the State of Texas (the "ENTITY "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ENTITY is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ENTITY, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ENTITY agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ENTITY under this Agreement, CITY agrees to pay to ENTITY a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ENTITY sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Dog Days HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ENTITY an amount of money in each contract year equal to the lesser amount of: Seventy -Five Hundredths percent (0.75 %) of the annual base payment amount, or the fixed contract amount of Sixteen Thousand Eighty -Six Dollars ($16,086). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 0.75% of the base payment amount, whichever is less. If CITY'S Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY will reduce the ENTITY's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ENTITY of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ENTITY. Dog Days HOT Funding PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ENTITY's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ENTITY of the agreed payments of hotel tax funds specified above, ENTITY agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ENTITY may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ENTITY's budget (Exhibit "A ") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds (a) That portion of total administrative costs of ENTITY for which hotel tax funds may be used shall not exceed that portion of ENTITY's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity, the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. Dog Days HOT Funding PY2016 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ENTITY shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ENTITY in which the hotel tax funds shall be used by ENTITY. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ENTITY any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ENTITY acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ENTITY with respect to the hotel tax funds paid by CITY to ENTITY under this Agreement. ENTITY shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ENTITY, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ENTITY, without approval of the City Council by ordinance. 3.2 Separate Accounts. ENTITY shall maintain any hotel tax funds paid to ENTITY by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ENTITY shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ENTITY. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ENTITY shall make such financial records available for inspection and review by the party making the request. ENTITY understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ENTITY shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e. g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports Dog Days HOT Funding PY2016 - Page 4 will be in a form either determined or approved by the City Manager or designate. ENTITY shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ENTITY shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ENTITY's Board of Directors, as well as any other meeting of any constituency of ENTITY, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ENTITY for any contractual obligations of ENTITY undertaken by ENTITY in satisfactory performance of those activities specified in ¶T2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in $3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ 12.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ENTITY, or to assume the performance of any contractual obligations of ENTITY, for or under any contract entered into by ENTITY as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ENTITY will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of Dog Days HOT Funding PY2016 - Page 5 all expenditures and tax funds on the day of termination. ENTITY will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ENTITY after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ENTITY; (b) The insolvency of ENTITY, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ENTITY for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ENTITY for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ENTITY to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, ENTITY agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ENTITY with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that ENTITY enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ENTITY shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. Dog Days HOT Funding PY2016 - Page 6 5.2 Independent Contractor. ENTITY shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ENTITY shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ENTITY shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ENTITY shall not be considered a partner or joint venturer with CITY, nor shall ENTITY be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ENTITY AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ENTITY OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ENTITY, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ENTITY shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 ENTITY Denton Dog Days, Inc. ATTN: Christine Gossett PO Box 1158 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ENTITY and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express Dog Days HOT Funding PY2016 - Page 7 or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ENTITY shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2015. ATTEST: an JENNIFER WALTERS, CITY SECRETARY THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: Dog Days HOT Fund ATTEST: DENTON OG DAYS, INC. By: C rman/Director APPROVED AS TO LEGAL FORM: By: By: Secretary Dog Days HOT Funding PY2016 - Page 9 Denton Dog Days Dog Days of Denton Celebration Budget 2016 ADVERTISING Exh bit A Brochures $1,200 Billboards 1,250 Website / Internet / Social Media 3,250 Print Advertising 3,386 Contract Labor 7,000 Total $16,086 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1092, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($91,309 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $91,309 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds pyWfestival foundation ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Festival Foundation for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. 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: AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes the CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, the CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes the CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, the FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes the CITY to delegate by contract with the FOUNDATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION a portion of the hotel tax revenue collected by the CITY at the rates and in the manner specified herein (such payments by the CITY to the FOUNDATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by the City as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Festival Foundation HOT Funding PY2016 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for the CITY's fiscal year. It will include hotel tax revenue due to the City for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by the CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of the CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, the CITY shall pay to FOUNDATION an amount of money in each contract year equal to the lesser amount of Four and Twenty -Six Hundredths percent (4.26 %) of the annual base payment amount, or the fixed contract amount of Ninety -One Thousand Three Hundred Nine Dollars ($91,309). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless the CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 4.26% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the FOUNDATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by the CITY to the FOUNDATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. The CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Festival Foundation HOT Funding PY2016 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits the CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of the FOUNDATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of the CITY. (c) CITY may withhold further allocations if CITY determines that FOUNDATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed payments of hotel tax funds specified above, the FOUNDATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as well as the promotion of tourism through the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major arts forms, as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited, to signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the FOUNDATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in FOUNDATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the FOUNDATION for which hotel tax funds may be used shall not exceed that portion of the FOUNDATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Festival Foundation HOT Funding PY2016 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) The FOUNDATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of the FOUNDATION funded by hotel tax revenues. In other words, the CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. The CITY shall not pay to the FOUNDATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) The FOUNDATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax funds paid by the CITY to the FOUNDATION under this Agreement. The FOUNDATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by the CITY. (c) Upon the application or consent of FOUNDATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of FOUNDATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. The FOUNDATION shall maintain any hotel tax funds paid to the FOUNDATION by the CITY in a separate account or with segregated fund accounting, such that any reasonable person can review the source of expenditures of tax funds. 3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the FOUNDATION. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds and within thirty (30) days after the end of every contract quarter, FOUNDATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. The FOUNDATION shall respond promptly to any Festival Foundation HOT Funding PY2016 - Page 4 request from the City Manager of the CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY, or his designate, reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), the CITY agrees to reimburse the FOUNDATION for any contractual obligations of the FOUNDATION undertaken by the FOUNDATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of the CITY to reimburse the FOUNDATION or to assume the performance of any contractual obligations of the FOUNDATION for or under any contract entered into by the FOUNDATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), the FOUNDATION will provide the CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by the City; 3) within five (5) business days of a request from the CITY, a Festival Foundation HOT Funding PY2016 - Page 5 listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. The FOUNDATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by the FOUNDATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of the FOUNDATION; (b) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either the CITY or the FOUNDATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of the FOUNDATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other parry in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, FOUNDATION agrees to refund any and all unused funds, or funds determined by the CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the FOUNDATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. Festival Foundation HOT Funding PY2016 - Page 6 5.2 Independent Contractor. The FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the CITY. The FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 5.3 Indemnification. THE FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE FOUNDATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 FOUNDATION Denton Festival Foundation, Inc. Carol Short P.O. Box 2104 Denton, Texas 76202 -2104 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and the FOUNDATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail Festival Foundation HOT Funding PY2016 - Page 7 notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. The FOUNDATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,0001$100,000), and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: LIN 2015. THE CITY OF DENTON, TEXAS LIN GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL JENNIFER WALTERS, URA CITY SECRETARY CITY ATTORNEY Festival Foundation HOT Funding PY2016 - Page 8 ATTEST: Secretary DENTON FESTIVAL FOUNDATION, INC. APPROVED AS TO LEGAL FORM: Festival Foundation NOT Funding PY2016 - Page 9 Exhibit A Denton Festival Foundation, Inc. Denton Arts & Jazz Festival Budget 2016 ADVERTISING Brochures $6,000 Magazines 6,000 Newspaper & Internet 5,000 Commercials & Photography 8,000 ART Musicians Site Operations Total Advertising $25,000 $46,000 20,309 Total Art $66,309 Total $91,309 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -1093, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley November 7, 2015 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($129,852 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $129,852 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds py16\gdac ordinance.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate by contract with the Greater Denton Arts Council, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue to promote tourism and the convention and hotel industry, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IS CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Greater Denton Arts Council, a non - profit corporation incorporated under the laws of the State of Texas (the "GDAC "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the city of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, GDAC is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with GDAC; as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and GDAC agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by GDAC under this Agreement, CITY agrees to pay to GDAC a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to GDAC sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. GDAC PY2016 HOT Funds Contract - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to GDAC an amount of money in each contract year equal to the lesser amount of. Six and Five Hundredths percent (6.05 %) of the annual base payment amount, or the fixed contract amount of One Hundred Twenty -Nine Thousand Eight Hundred Fifty -Two Dollars ($129,852). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.05% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the GDAC's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to GDAC of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports, and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. GDAC PY2016 HOT Funds Contract - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of GDAC. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that GDAC's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to GDAC of the agreed payments of hotel tax funds specified above, GDAC agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity and by the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms. Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by GDAC may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in GDAC's budget (Exhibit "A ") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) GDAC agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). GDAC shall not utilize hotel tax funds for any expenditure, which has not been specifically documented to satisfy the purposes set forth in ¶ ¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity, the primary purpose of which is not directly related to the promotion of GDAC PY2016 HOT Funds Contract - Page 3 local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. IIl. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) GDAC shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of GDAC in which the hotel tax funds shall be used by GDAC. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to GDAC any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) GDAC acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in GDAC with respect to the hotel tax funds paid by CITY to GDAC under this Agreement. GDAC shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of GDAC, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of GDAC, without approval of the City Council by ordinance. 3.2 Separate Accounts. GDAC shall maintain any hotel tax funds paid to GDAC by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. GDAC shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by GDAC. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, GDAC shall make such financial records available for inspection and review by the party making the request. GDAC understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOVT CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every contract quarter, GDAC shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all GDAC PY2016 HOT Funds Contract - Page 4 financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). GDAC shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. GDAC shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. GDAC shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of GDAC's Board of Directors, as well as any other meeting of any constituency of GDAC, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse GDAC for any contractual obligations undertaken by GDAC in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse GDAC, or to assume the performance of any contractual obligations of GDAC, for or under any contract entered into by GDAC as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), GDAC will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget, the budget will be considered approved; 2) within thirty (30) days, a GDAC PY2016 HOT Funds Contract - Page 5 full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. GDAC will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by GDAC after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of GDAC; (b) The insolvency of GDAC, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by GDAC for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or GDAC for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of GDAC to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, GDAC agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by GDAC with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that GDAC enters into any arrangement, contractual or otherwise, with such other entity, person or organization, GDAC shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds GDAC PY2016 HOT Funds Contract - Page 6 maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. GDAC shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. GDAC shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall GDAC be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. GDAC AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY, OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY GDAC OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF GDAC, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. GDAC shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 GDAC Greater Denton Arts Council ATTN: Tracy Bays- Boothe 400 East Hickory Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and GDAC and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. GDAC PY2016 HOT Funds Contract - Page 7 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. GDAC shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /$100,000), 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City - owned property where alcohol will be provided or served, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of , 2015. GDAC PY2016 HOT Funds Contract - Page 8 ATTEST: THE CITY OF DENTON, TEXAS ml GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO JENNIFER WALTERS, CITY SECRETARY CITY A ATTEST: Secretary GREATER DFXTON ARTS COUNCIL LI-A APPROVED AS TO LEGAL FORM: GDAC PY2016 HOT Funds Contract - Page 9 ADVERTISING Direct Promotion Website Salary CONVENTION CENTER Staff Support Salary Greater Denton Arts Council Facility and Programs Budget 2016 Exhibit A $15,000 10,000 Total Advertising $25,000 $24,000 ART Exhibition and Programs $25,000 Community Arts Coordinator Salary Support 18,000 Executive Director Salary Support 33,000 Office Supplies 4,852 Total Art $80,852 Total $129,852 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1094, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($7,700 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $7,700 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departments \legal \our documents \ordinances \15\hot funds py16\holiday festival ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY F CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Holiday Festival Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Holiday Festival HOT Funding PY2016 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during fiscal year 2005, less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30`h, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of Thirty -Six Hundredths percent (0.36 %) of the annual base payment amount, or the fixed contract amount of Seven Thousand Seven Hundred Dollars ($7,700). This amount will be paid in one lump sum on or before August 1, 2016. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. Holiday Festival HOT Funding PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this Holiday Festival HOT Funding PY2016 - Page 3 contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. Holiday Festival HOT Funding PY2016 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: Holiday Festival HOT Funding PY2016 - Page 5 (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by 11.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR Holiday Festival HOT Funding PY2016 - Page 6 LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY ASSOCIATION City Manager Denton Holiday Festival Association, Inc. City of Denton Frances Shelton 215 E. McKinney P.O. Box 2765 Denton, TX 76201 Denton, Texas 76202 -2765 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. Holiday Festival HOT Funding PY2016 - Page 7 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: Holiday Festival HOT Funding PY2016 - Page 8 ATTEST: By: Secre DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. By: Ch rrnwm a or APPROVED AS TO LEGAL FORM: By: Holiday Festival HOT Funding PY2016 - Page 9 Exhibit A Denton Holiday Festival Association, Inc, Denton Holiday Lighting Budget 2016 ADVERTISING Magazines $750 Newspapers 2,625 Internet/ Social Media 4,325 Total $7,700 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1096, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d/b /a Denton Main Street Association (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($25,369 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $25,369 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds pyWrnain street ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION, INC., d/b /a DENTON MAIN STREET ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Central Business District Association, Inc., d/b /a Denton Main Street Association for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IM CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION INC., d/b /a DENTON MAIN STREET ASSOCIATION (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Central Business District Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Main Street HOT Funding PY2016 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (Le., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay ASSOCIATION an amount of money in each contract year equal or lesser amount of. One and Eighteen Hundredths percent (1.18 %) of the annual base payment amount, or the fixed contract amount of Twenty -Five Thousand Three Hundred Sixty -Nine Dollars ($25,369). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.18% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Main Street HOT Funding PY2016 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. Main Street HOT Funding PY2016 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in 11.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or Main Street HOT Funding PY2016 - Page 4 designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by the ASSOCIATIION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds Main Street HOT Funding PY2016 - Page 5 by the ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in 12.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, Main Street HOT Funding PY2016 - Page 6 employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 ASSOCIATION Denton Main Street Association ATTN: Christine Gossett PO Box 2017 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. Main Street HOT Funding PY2016 - Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City-owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of 92015. ATTEST: LIM THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED JENNIFER WALTERS, A BURGES CITY SECRETARY CITY ATTORXI� DENTOI)t - CENTRAL BUSINESS DISTRICT ASSOCIATION, INC. (Denton Main Street Association) By: iq4� ChairmarfOrector Main Street HOT Funding PY2016 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: Main Street HOT Funding PY2016 - Page 9 Denton Main Street Association Historic Downtown Events Budget 2016 ADVERTISING Exhibit A Arts, Antiques & Autos Brochures $600 Visitors Guide 6,000 Coops & /or Printed Matter 3,000 Internet & Social Media 3,600 Retail Tourism 2,000 Billboard 1,000 Printed Matter Postage 269 Memberships 400 Contract Labor 8,500 Total $25,369 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1097, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($125,000 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $125,000 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departmentAegahour documents \ordinances \15\hot funds py16\ntsf ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY EN APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the North Texas State Fair Association, a non - profit corporation incorporated under the laws of the State of Texas (the "ASSOCIATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. North Texas State Fair PY2016 HOT Funds — Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30'', September 30`h, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of Five and Eighty -Three Hundredths percent (5.83 %) of the annual base payment amount, or the fixed contract amount of One Hundred Twenty -Five Thousand Dollars ($125,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 5.83% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. North Texas State Fair PY2016 HOT Funds — Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit 'W') and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. North Texas State Fair PY2016 HOT Funds — Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in T1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax fund, and within thirty (30) days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). ASSOCIATION shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. ASSOCIATION shall North Texas State Fair PY2016 HOT Funds — Page 4 respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) North Texas State Fair PY2016 HOT Funds — Page 5 within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to T ¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. North Texas State Fair PY2016 HOT Funds — Page 6 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 ASSOCIATION North Texas State Fair Association Glenn Carlton P.O. Box 1695 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. North Texas State Fair PY2016 HOT Funds — Page 7 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City - owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2015. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER North Texas State Fair PY2016 HOT Funds — Page 8 ATTEST: LIM JENNIFER WALTERS, CITY SECRETARY ATTEST: In Secretary NORTFjTEXAS STATE FAIR ASSOOIATION APPROVED AS TO LEGAL FORM: North Texas State Fair PY2016 HOT Funds — Page 9 Exhibit A North Texas State Fair Association North Texas State Fair & Rodeo Budget 2016 ADVERTISING Internet $10,000 Radio 40,000 Hispanic Radio 15,000 Newspaper/ Magazines 10,000 Billboards 20,000 Television 30,000 Total $125,000 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -1098, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tejas Storytelling Association, Inc. (PY2016) for the payment and use of hotel tax revenue; and providing an effective date. ($52,747 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $52,747 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds pyl6 \tejas ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and The Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, INC. (PY2016), PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and The Tejas Storytelling Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODe §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Tejas HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (Le., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31 St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of: Two and Forty -Six Hundredths percent (2.46 %) of the annual base payment amount, or the fixed contract amount of Fifty -Two Thousand Seven Hundred Forty -Seven Dollars ($52,747). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 2.46% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25`h day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. Tejas HOT Funding PY2016 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinitys; as well as the encouragement, promotion, improvement, and application of the arts including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds Tejas HOT Funding PY2016 - Page 3 shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of Tejas HOT Funding PY2016 - Page 4 ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016 and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget, the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Tejas HOT Funding PY2016 - Page 5 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. Tejas HOT Funding PY2016 - Page 6 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY ASSOCIATION City Manager The Tejas Storytelling Association, Inc. City of Denton Elizabeth Ellis 215 E. McKinney P.O. Box 2806 Denton, TX 76201 Denton, Texas 76202 -2806 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. Tejas HOT Funding PY2016 - Page 7 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: 2015. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO JENNIFER WALTERS, N CITY SECRETARY CIT=TT=RNE THE TEJAS S YTELLING ASSOCIARON, INC. Tejas HOT Funding PY2016 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: Tejas HOT Funding PY2016 - Page 9 Tejas Storytelling Association Tejas Storytelling Festival Budget 2016 ADVERTISING Exhibit A Radio & Television $17,937 Photography 550 Print Advertising 10,000 Internet 3,000 Direct Marketing & Promotions 4,660 Contract Labor 3,750 Total Advertising $39,897 ART Performers $9,600 Site Operations 3,250 Total Art $12,850 Total $52,747 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1099, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($8,269 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $8,269 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \\codad\departments \legal \our documents \ordinances \15\hot funds py16 \texas filmmakers ord.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Texas Filmmakers' Corporation for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Pin APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY-ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and Texas Filmmakers' Corporation, a legal entity incorporated under the laws of the State of Texas (the "CORPORATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CORPORATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CORPORATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CORPORATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CORPORATION under this Agreement, CITY agrees to pay to CORPORATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CORPORATION sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Texas Filmmakers HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The tern "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30d, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CORPORATION an amount of money in each contract year equal to the lesser amount of Thirty -Nine Hundredths percent (0.39 %) of the annual base payment amount, or the fixed contract amount of Eight Thousand Two Hundred Sixty -Nine Dollars ($8,269). This amount will be paid in one lump sum after the 25th of January 2016. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CORPORATION's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to CORPORATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CORPORATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Texas Filmmakers HOT Funding PY2016 - Page 2 (c) CITY may withhold further allocations if CITY determines that CORPORATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CORPORATION of the agreed payments of hotel tax funds specified above, CORPORATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CORPORATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in CORPORATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CORPORATION for which hotel tax funds may be used shall not exceed that portion of the CORPORATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CORPORATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of CORPORATION in which the hotel tax funds shall be used by CORPORATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to CORPORATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. Texas Filmmakers HOT Funding PY2016 - Page 3 (b) CORPORATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds paid by CITY to CORPORATION under this Agreement. CORPORATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of CORPORATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CORPORATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. CORPORATION shall maintain any hotel tax funds paid to CORPORATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CORPORATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CORPORATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CORPORATION shall make such financial records available for inspection and review by the party making the request. CORPORATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CORPORATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CORPORATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CORPORATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CORPORATION's Board of Directors, as well as any other meeting of any constituency of CORPORATION, at which this Agreement or any matter subject to this Agreement shall be considered. Texas Filmmakers HOT Funding PY2016 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CORPORATION for any contractual obligations of CORPORATION undertaken by CORPORATION in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CORPORATION, or to assume the performance of any contractual obligations of CORPORATION, for or under any contract entered into by CORPORATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CORPORATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CORPORATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by CORPORATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CORPORATION; Texas Filmmakers HOT Funding PY2016 - Page 5 (b) The insolvency of CORPORATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CORPORATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of CORPORATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, CORPORATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CORPORATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CORPORATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CORPORATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CORPORATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CORPORATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and CORPORATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CORPORATION shall not be considered a partner or joint venturer with CITY, nor shall CORPORATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. CORPORATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CORPORATION OF THOSE Texas Filmmakers HOT Funding PY2016 - Page 6 SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF CORPORATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CORPORATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 CORPORATION Texas Filmmakers' Corporation Joshua Butler 5012 Pebble Beach Trail Denton, Texas 76208 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CORPORATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Texas Filmmakers HOT Funding PY2016 - Page 7 Agreement, and the parties hereby declare they Would have enacted such remaining portions despite any such invalidity, 5.12 Insurance. CORPORATION shall provide insurance as follows: 1 $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /S 100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City-owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this ATTEST: Bv: JENNIFER WALTERS, CITY SECRETARY ATTEST: day of ,2015, THE CITY OF DFNTON, TEXAS By: GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEfiAL_E T'A BURGESS, CITY A= TEXAS Fit By: BY BY Secretary AS TO LEGAL FORM: Texas Filmmakers HOT Funding PY20 16 - Page 8 Texas Filmmakers Thin Line Fest Budget 2016 ADVERTISING Exhibit A Internet $8,269 Total $8,269 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1100, Version: 1 DEPARTMENT: ACM: Date: Agenda Information Sheet Finance Bryan Langley November 17, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Kiwanis Club of Denton, Breakfast (Turkey Roll Bicycle Rally) (PY2016) providing for the payment and use of hotel tax revenue; and providing an effective date. ($4,850 - Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2016 through midnight January 31, 2017. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2015 -2016 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $4,850 for FY 2015 -2016 and has been included in the Annual Program of Services. 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 11/12/2015 \ \codad \departments \legal \our documents \ordinances \15\hot funds pyI6\kiwanis Wast turkey roll.doc Exhibit 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND KIWANIS CLUB OF DENTON, BREAKFAST TURKEY ROLL BICYCLE RALLY FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Kiwanis Club of Denton Breakfast Turkey Roll Bicycle Rally for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND KIWANIS CLUB OF DENTON, BREAKFAST (TURKEY ROLL BICYCLE RALLY) (PY2016) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and Kiwanis Club of Denton, Breakfast, a legal entity incorporated under the laws of the State of Texas (the "CLUB "): WHEREAS, TEx. Tax CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ( "hotel tax ") not exceeding seven percent (7 %) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEx Tax CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CLUB is well equipped to perform those activities; and WHEREAS, TEx Tax CODE §351.101(c) authorizes CITY to delegate by contract with CLUB, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CLUB agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CLUB under this Agreement, CITY agrees to pay to CLUB a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CLUB sometimes herein referred to as the "agreed payments" or "hotel tax funds "). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7 %) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Kiwanis Club Breakfast HOT Funding PY2016 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30tH September 30th, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CLUB an amount of money in each contract year equal to the lesser amount of Twenty -Three Hundredths percent (0.23 %) of the annual base payment amount, or the fixed contract amount of Four Thousand Eight Hundred Fifty Dollars ($4,850). This amount will be paid in one lump sum after the 25th of January 2016. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CLUB's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to CLUB of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25' day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CLUB. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that CLUB's expenditures deviate materially from their approved budget. Kiwanis Club Breakfast HOT Funding PY2016 - Page 2 IL USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CLUB of the agreed payments of hotel tax funds specified above, CLUB agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. Tax CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CLUB may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. Tax CODE §351.101(e), but only if specified in CLUB's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEx. Tax CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CLUB for which hotel tax funds may be used shall not exceed that portion of the CLUB's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CLUB shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of CLUB in which the hotel tax funds shall be used by CLUB. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to CLUB any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) CLUB acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds paid by CITY to CLUB under this Agreement. CLUB shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEx Tax CoDE §351.101(a) and in the budget as approved by CITY. Kiwanis Club Breakfast HOT Funding PY2016 - Page 3 (c) Upon the application or consent of CLUB, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CLUB, without approval of the City Council by ordinance. 3.2 Separate Accounts. CLUB shall maintain any hotel tax funds paid to CLUB by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CLUB shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CLUB. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CLUB shall make such financial records available for inspection and review by the party making the request. CLUB understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CLUB shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. Tax CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CLUB shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CLUB shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CLUB's Board of Directors, as well as any other meeting of any constituency of CLUB, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2016, and terminate at midnight on January 31, 2017. However, the program period shall commence on January 1, 2016 and terminate at midnight on December 31, 2016. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. Kiwanis Club Breakfast HOT Funding PY2016 - Page 4 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CLUB for any contractual obligations of CLUB undertaken by CLUB in satisfactory performance of those activities specified in ¶ ¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CLUB, or to assume the performance of any contractual obligations of CLUB, for or under any contract entered into by CLUB as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CLUB will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CLUB will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by CLUB after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CLUB; (b) The insolvency of CLUB, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CLUB for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or Kiwanis Club Breakfast HOT Funding PY2016 - Page 5 (d) The failure of CLUB to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non - terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶ ¶4.3 or 4.4, CLUB agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CLUB with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that CLUB enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CLUB shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. Tax CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CLUB shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CLUB shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and CLUB shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CLUB shall not be considered a partner or joint venturer with CITY, nor shall CLUB be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. CLUB AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CLUB OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF CLUB, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CLUB shall not assign this Agreement without first obtaining the written consent of CITY. Kiwanis Club Breakfast HOT Funding PY2016 - Page 6 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 CLUB Kiwanis Club of Denton, Breakfast Mary Harris PO Box 1044 Denton, Texas 76205 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CLUB and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. CLUB shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /$100,000), and Kiwanis Club Breakfast HOT Funding PY2016 - Page 7 3. $250,000 Liquor /Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. I W.4 xirl-1-0-6m1" ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary day of 2015. TIE CITY OF DENTON, TEXAS By: GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO on t — - CITY ATTORNEY KIWANIS CLUB OF DENTON, BREAKFAST By: -- Cha rman/Director APPROVED AS TO LEGAL FORM: By: Kiwanis Club Breakfast HOT Funding PY2016 - Page 8 Exhibit A Kiwanis Club of Denton, Breakfast Turkey Roll Bicycle Rally Budget 2016 AVERTISING Printed Matter & Postage $ 1,750 Coop with CVB 500 Video 2,250 Booth Ads 350 Total Request $4,850 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1130, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling CM/ ACM: Jon Fortune Date: November 17, 2015 SUBJECT Consider approval of a resolution to the City Council of the City of Denton, Texas authorizing the filing and acceptance of a contract with the Solid Waste & Recycling Department (SW &R) and Mill Branch, LLC, for the SW &R to purchase mitigation credits to offset impacts to the Waters of the United States in accordance with the U.S. Army Corps of Engineers Section 404 permit and the Texas Commission on Environmental Section 401 certification requirements, in the preparation, development and submittal of a permit application for lateral expansion and associated services pertaining to the City of Denton Landfill (MSW Permit 41590a); authorizing the expenditure of funds in the stated amount of $249,690, and providing an effective date. BACKGROUND The EPA upgraded their Resource Conservation and Recovery Act (RCRA), Subtitle D, is to be more protective of public health and the environment. This federal rule applied to Municipal Solid Waste (MSW) facilities and providing an effective date of October 9, 1993. The RCRA update required many improvements in the design and operating criteria for MSW landfills, including the requirement for landfills to be constructed with composite liners. The State of Texas followed by updating the Texas Solid Waste Disposal Act which met or exceeded the RCRA, Subtitle D requirements. All MSW landfills in Texas had to have their landfill permits re- issued to meet the new requirements. Denton submitted a permit application that met all of the new regulatory design and operating requirements that provided for an expansion of the landfill increase from 36 acres to 229 acres (153 acre footprint), to meet the community's projected mid -term disposal needs. This permit was approved in October, 1997. In the mid - section of the designed landfill site was a small intermittent stream that handled the storm water drainage from the field, which fed into another intermittent stream that fed into Pecan Creek. The drainage from the field was replaced with two drainage conveyances along the perimeter of the landfill which then drained back into the same stream segment that fed into Pecan Creek. The City received authorization in 1995 to fill the intermittent stream under Nationwide Permit number 26 and the authorization had expired. Upon conducting a review of the existing site and its permit, as part of our development of a permit amendment to expand the landfill, it was discovered that not all of the stream was removed (1776 feet). The US Army Corps of Engineers (USACOE) was contacted to begin the process to obtain a new authorization to complete the work. The public notice and comment component of the process is complete. The permit will be issued upon the completion of the purchase of mitigation bank credits in the amount of $249,690 for an unnamed tributary City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1130, Version: 1 (this Agenda request) and an additional purchase of credits in the amount of $66,888 for mitigation of a .17 acre siltation pond (the mitigation credit authorization for the siltation pond [$66,888] will be presented to City Council for approval at a future date). OPTIONS The City Council may recommend approval of the mitigation bank credits or deny the request. RECOMMENDATION Staff recommends the City Council recommend approving the purchase of mitigation bank credits. ESTIMATED SCHEDULE OF PROJECT The Facility permit amendment application documents are planned for submittal to the Texas Commission on Environmental Quality (TCEQ) before the end of the calendar year. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Reviewed by the PUB at their meeting of November 9, 2015. FISCAL INFORMATION The $249,690 purchase will be funded using bonds from SW &R job cost capital account 660620595. EXHIBITS 1. US Army Corps of Engineers Public Notice 2. Mill Branch LLC Credit Sales Agreement 3. Resolution Respectfully submitted: Vance Kemler General Manager Solid Waste & Recycling Services Prepared by: S. Lebsack Development & Administrative Manager Solid Waste & Recycling Services City of Denton Page 2 of 2 Printed on 11/12/2015 Public Notice US Army Carps of Engineers (-) Fort Worth District Applicant: City of Denton Solid Waste Services Project No.: SWF- 2014 -00224 Date: June 18, 2015 Purpose The purpose of this public notice is to inform you of a proposal for work in which you might be interested. It is also to solicit your comments and information to better enable us to make a reasonable decision on factors affecting the public interest. We hope you will participate in this process. Regulatory Program Since its early history, the U.S. Army Corps of Engineers has played an important role in the development of the nation's water resources. Originally, this involved construction of harbor fortifications and coastal defenses. Later duties included the improvement of waterways to provide avenues of commerce. An important part of our mission today is the protection of the nation's waterways through the administration of the U.S. Army Corps of Engineers Regulatory Program. Section 10 The U.S. Army Corps of Engineers is directed by Congress under Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) to regulate all work or structures in or affecting the course, condition or capacity of navigable waters of the United States. The intent of this law is to protect the navigable capacity of waters important to interstate commerce. Section 404 The U.S. Army Corps of Engineers is directed by Congress under Section 404 of the Clean Water Act (33 USC 1344) to regulate the discharge of dredged and fill material into all waters of the United States, including wetlands. The intent of the law is to protect the nation's waters from the indiscriminate discharge of material capable of causing pollution and to restore and maintain their chemical, physical and biological integrity. Contact Name: Mr. Eric Dephouse, Project Manager Phone Number: 817- 886 -1820 JOINT PUBLIC NOTICE U.S. ARMY CORPS OF ENGINEERS FORT WORTH DISTRICT AND TEXAS COMMISSION ON ENVIRONMENTAL QUALITY SUBJECT: Application for a Department of the Army Permit under Section 404 of the Clean Water Act (CWA) and for water quality certification under Section 401 of the CWA to discharge dredged and fill material into waters of the United States associated with the discharge approximately 800 cubic yards of fill material into approximately 0.37 acre of waters of the United States in conjunction with the completion of the existing City of Denton Municipal Landfill. APPLICANT: City of Denton Solid Waste Services Attn: Vance Kemler 1527 S. Mayhill Road Denton, Texas 76208 APPLICATION NUMBER: SWF- 2014 -00224 DATE ISSUED: June 18, 2015 LOCATION: The project would be located on an unnamed intermittent tributary to Pecan Creek in the City of Denton Municipal Landfill at 1527 South Mayhill Road, in the city of Denton, Denton County, Texas. The project area is centered at approximately 33.1873170 latitude, - 97.0798930 longitude on the Denton East 7.5- minute USGS quadrangle map in the USGS Hydrologic Unit 12030103. OTHER AGENCY AUTHORIZATIONS: State Water Quality Certification PROJECT DESCRIPTION: The City of Denton Solid Waste Services proposes to discharge approximately 800 cubic yards of fill material into 0.37 acre of Waters of the United States (WOUS) consisting of approximately 1,776 linear feet (0.2 acre) of an unnamed tributary and a 0.17 acre man -made siltation pond abutting the ephemeral channel. The siltation pond was constructed on- channel by the applicant to prevent silt and sediment from reaching a downstream unnamed tributary of Pecan Creek. No wetland impacts are proposed. The City of Denton Solid Waste Services administers the landfill site which is regulated by the Texas Commission on Environmental Quality (TCEQ). The landfill currently operates under TCEQ Municipal Solid Waste (MSW) Permit No. 1590A which was issued on October 3, 1997. Previously, the landfill operated under MSW Permit No. 1590 issued by the Texas Department of Health in 1985. MSW permits authorize a certain airspace volume of waste containment within a specified footprint. The expected life of a landfill is projected forward based on estimated waste volumes per year for the predicted population of the service area up to the maximum permitted airspace volume. In the instance of a rapidly expanding population in the service area, reaching the maximum permitted landfill volume can be prolonged by recycling and reuse of waste, which the applicant has participated in at the site. The proposed activity would include the completion of the state authorized landfill as well as a vertical expansion. The applicant was originally authorized to fill all of the jurisdictional areas within the site under Nationwide Permit number 26 by USACE verification letter dated September 15, 1995. However, the work was not completed before the Nationwide Permit 26 authorization expired. Therefore, the applicant is applying for an individual permit to impact approximately 1,776 linear feet (0.2 acre) of an unnamed ephemeral jurisdictional channel and a 0.17 -acre man -made siltation pond abutting the ephemeral unnamed channel. PURPOSE: The purpose of the City of Denton Landfill is to provide solid waste disposal services for the citizens of a rapidly growing area, including the City of Denton and surrounding Denton, Collin, Grayson, Cooke, Montague, Wise, Tarrant, and Dallas counties. The proposed project is the continuation of the state authorized landfill process (MSW Permit No. 1590A) and a proposed vertical expansion in the vicinity of the subject tributary stream for completion of the existing City of Denton Municipal Landfill in accordance with the TCEQ MSW rules. NEED FOR THE PROJECT: The landfill serves a large and rapidly growing population in the surrounding counties. The City of Denton Landfill is the primary solid waste disposal facility available to this populace. The completion and continued operation of the landfill is a basic necessity for the population of the area. EXISTING CONDITIONS: The project site is the existing City of Denton Municipal Landfill which has been in operation since prior to 1995. At the present time the landfill operations extend to the edge of the ephemeral jurisdictional channel and a 0.17 -acre man -made siltation pond abutting the ephemeral unnamed channel. Remnant vegetation along the bank of the ephemeral channel and siltation pond include black willow (Salix nigra), hackberry (Celtis laevigata), cedar elm (Uhnus crassifolia), yaupon (Ilex voinitoria), Chinese privet (Ligustruin sinense), western ragweed (Ainbrosia psylostachya), giant ragweed (Ainbrosia trifida), cottonwood (Populus deltoides), common sunflower (Helianthus annus), Johnson grass (Sorghuin halapense) and common greenbrier (Smilax rotundifolia). ADVERSE IMPACTS OF THE PROPOSED PROJECT: The project would result in the permanent loss of 1,776 linear feet (0.2 acre) of an unnamed ephemeral channel and a 0.168 -acre man -made siltation pond abutting the ephemeral unnamed channel. ALTERNATIVES TO THE PROPOSED PROJECT: The applicant prepared a preliminary alternatives analysis, which includes the following: No- Action Alternative The No- Action Alternative would be the least environmentally damaging because it would not involve any construction activities that would impact waters of the U.S. The No- Action Alternative would not meet the need and purpose of the proposed project and is therefore not practicable. The No- Action Alternative was eliminated as it would result in limited continued use of landfill site until maximum capacity was reached. The No- Action Alternative provides potential insight into consequences if a project is not built and is not used as a baseline to compare other alternatives against. Off -Site Alternatives Off -site alternatives were determined not to be practicable because the Denton Landfill is an existing Type I Municipal Solid Waste Landfill that has been permitted by the TCEQ and has been in operation since 1985. Any off -site alternative would involve premature closure of the existing landfill and opening a new landfill which would require acquisition of an alternative site and a new permit approval process at the state, and possibly federal levels. Permitting of an alternate site for landfill is a very lengthy, arduous, and expensive process requiring many years. Additionally, due to the rapidly expanding population of the region, coupled with the recent expansion of oil and gas development, finding an available alternate site of sufficient size for a landfill would be extremely difficult. It is also very likely that an alternative site of sufficient size would also contain jurisdictional waters of at least similar nature to the subject site. On -Site Alternatives Tributary Avoidance Plan. Under the Tributary Avoidance Plan the applicant would not impact all or a portion of the jurisdictional tributary within the approved landfill footprint. This would be the least environmentally damaging alternative. Not impacting the jurisdictional areas would result in a loss of TCEQ permitted solid waste disposal space for the City of Denton that was anticipated to be utilized under the current TCEQ permit. This would result in a landfill space deficit for the landfill and the need for other expansion space at an earlier date than currently planned. The loss of disposal airspace would be significantly greater than that represented by the area of the jurisdictional tributary avoided. This is so because avoidance would necessitate setbacks from the tributary of at least 50 feet on either side for maintenance access and a vegetative buffer from the landfill, as well as the construction of 4:1 fill slopes on both sides and the upstream end of the jurisdictional tributary for stability of the landfill. This loss of landfill space was not contemplated in the original landfill development plan and would represent a deficit of currently permitted (TCEQ) and future expansion (vertical) landfill capacity of more than 3,000,000 cubic yards under a total avoidance scenario, about 10 years of capacity at current fill rates. The demand for waste disposal is ever present and increasing with population growth. The currently TCEQ permitted landfill boundary and capacity that includes the subject tributary was intended to provide landfill capacity for many years. The City of Denton has applied to the TCEQ for a vertical and lateral expansion to provide additional capacity to meet future demands. That application process is proceeding through the lengthy regulatory process, but the capacity of the footprint over the tributary area is a significant part of the current and projected future capacity. Additional lateral expansion of the Denton Landfill to make up for the lost volume to avoid the tributary is limited by the presence of Pecan Creek (a relatively permanent water) and its flood plain to the east, other relatively undisturbed tributaries to the north and south, and existing residential and commercial development to the west. The Tributary Avoidance Plan is not a practicable alternative due to the loss of State authorized landfill capacity and the expense, time and difficulty of permitting alternate space. This alternative would not achieve the purpose of the project of utilizing the landfill as permitted by the State. TCEQ- Approved Site Plan / Proposed Landfill Plan (Applicant's Preferred Alternative). In order to utilize the landfill footprint and fill airspace volume authorized under the TCEQ issued MSW Permit No. 1590A, the applicant proposes to impact approximately 1,776 linear feet (0.2 acre) of an unnamed ephemeral jurisdictional tributary and a 0.17 -acre man -made siltation pond abutting the ephemeral unnamed channel. The siltation pond was constructed on- channel by the applicant to prevent silt and sediment from reaching a downstream unnamed tributary of Pecan Creek. The applicant proposes to place approximately 800 cubic yards of clean clay material below the plane of ordinary high water mark of the jurisdictional channel and adjacent siltation pond to construct the required landfill liner. Nearly all the area surrounding the unnamed channel and siltation pond has been previously impacted by authorized landfill activities. Under this alternative the landfill would be completed as originally authorized by TCEQ and allow for the proposed vertical expansion, if subsequently approved by TCEQ. This alternative would fulfill the purpose of the project of utilizing the landfill as permitted by the State. The loss of the aquatic resource would be compensated by purchase of mitigation credits from approved mitigation banks in accordance with the 2008 Rule: Compensatory Mitigation for Losses of Aquatic Resources. The applicant believes that this is the least damaging practicable alternative. COMPENSATORY MITIGATION: To offset unavoidable adverse impacts to WOUS, the applicant proposes to purchase credits from an authorized mitigation bank with a service area covering the project site. PUBLIC INTEREST REVIEW FACTORS: This application will be reviewed in accordance with 33 CFR 320 -332, the Regulatory Program of the U. S. Army Corps of Engineers (USACE), and other pertinent laws, regulations, and executive orders. Our evaluation will also follow the guidelines published by the U. S. Environmental Protection Agency pursuant to Section 404(b)(1) of the CWA. The decision whether to issue a permit will be based on an evaluation of the probable impact, including cumulative impact, of the proposed activity on the public interest. That decision will reflect the national concerns for both protection and utilization of important resources. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered, including its cumulative effects. Among the factors addressed are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people. 11 The USACE is soliciting comments from the public; federal, state, and local agencies and officials; Indian Tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the USACE in determining whether to issue, issue with modifications, or conditions, or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and /or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity. STATE WATER QUALITY CERTIFICATION: This project would result in a direct impact of greater than three acres of waters of the state or 1,500 linear feet of streams (or a combination of the two is above the threshold), and as such would not fulfill Tier I criteria for the project. Therefore, Texas Commission on Environmental Quality (TCEQ) certification is required. Concurrent with USACE processing of this Department of the Army application, the TCEQ is reviewing this application under Section 401 of the Clean Water Act, and Title 30, Texas Administrative Code Section 279.1 -13 to determine if the work would comply with State water quality standards. By virtue of an agreement between the USACE and the TCEQ, this public notice is also issued for the purpose of advising all known interested persons that there is pending before the TCEQ a decision on water quality certification under such act. Any comments concerning this application may be submitted to the Texas Commission on Environmental Ouality, 401 Coordinator, MSC -150, P.O. Box 13087, Austin, Texas 78711- 3087. The public comment period extends 30 days from the date of publication of this notice. A copy of the public notice with a description of the work is made available for review in the TCEQ's Austin Office. The TCEQ may conduct a public meeting to consider all comments concerning water quality if requested in writing. A request for a public meeting must contain the following information: the name, mailing address, application number, or other recognizable reference to the application; a brief description of the interest of the requestor, or of persons represented by the requestor; and a brief description of how the application, if granted, would adversely affect such interest. ENDANGERED AND THREATENED SPECIES: The USACE has reviewed the U.S. Fish and Wildlife Service's latest published version of endangered and threatened species to determine if any may occur in the project area. The proposed project would be located in Denton County, Texas, where the whooping crane (Gnus ainericana), least tern (Sterna antillartun), and piping plover (Charadrius inelodus) are the only listed species known to occur or may occur as migrants. Our initial review indicates that the proposed work would have no effect on federally - listed endangered or threatened species. NATIONAL REGISTER OF HISTORIC PLACES: The USACE has reviewed the latest complete published version of the National Register of Historic Places and found no listed properties to be in the project area. However, presently unknown scientific, archaeological, cultural or architectural data may be lost or destroyed by the proposed work under the requested permit. FLOODPLAIN MANAGEMENT: The USACE is sending a copy of this public notice to the local floodplain administrator. In accordance with 44 CFR part 60 (Flood Plain Management Regulations Criteria for Land Management and Use), the floodplain administrators of participating communities are required to review all proposed development to determine if a floodplain development permit is required and maintain records of such review. SOLICITATION OF COMMENTS: The public notice is being distributed to all known interested persons in order to assist in developing fact upon which a decision by the USACE may be based. For accuracy and completeness of the record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition. PUBLIC HEARING: Prior to the close of the comment period any person may make a written request for a public hearing setting forth the particular reasons for the request. The District Engineer will determine whether the issues raised are substantial and should be considered in his permit decision. If a public hearing is warranted, all known interested persons will be notified of the time, date, and location. CLOSE OF COMMENT PERIOD: All comments pertaining to this Public Notice must reach this office on or before July 18, 2015, which is the close of the comment period. Extensions of the comment period may be granted for valid reasons provided a written request is received by the limiting date. If no comments are received by that date, it will be considered that there are no objections. Comments and requests for additional information should be submitted to ; Regulatory Branch, CESWF -DE -R; U. S. Army Corps of Engineers; Post Office Box 17300; Fort Worth, Texas 76102 -0300. You may visit the Regulatory Branch in Room 3A37 of the Federal Building at 819 Taylor Street in Fort Worth between 8:00 A.M. and 3:30 P.M., Monday through Friday. Telephone inquiries should be directed to Mr. Eric Dephouse at (817) 886 -1820. Please note that names and addresses of those who submit comments in response to this public notice may be made publicly available. DISTRICT ENGINEER FORT WORTH DISTRICT CORPS OF ENGINEERS 31 3 JA�RINA..ST Y \M,.r.. i GAYLA . REATMENT PLANT _ 288 t� �t9 FOSTER _RC1;_..__ PROJECT AREA l i LL Cy4 �%y .� p ......:......0 MAP SOURCE: DELORME TOPO NORTH AMERICA9.0 (2010) M1�I :,.�,.� '�Y4""":�r�l d�� ✓n., .' =����^ �.�,.i ,��f;, l f �„�.�I��' :'��;�380S��i� '. Z J /Y P� o 4icr rr v r J,�il'r'r'r tl �' ably: r I r" ,a �i lI,�rIrI�tk. A1,Nti �1�1 x,ti, f a it a 1`( y x °Vf i` It? x yw°, "aw�i lai rl(C�. d)�r ��� r °�r 44 iVf, 1 � r, r� i}r ��PILly rpy p�, ca r �J� I 11 �rr vI 4, FIGURE 1 �(> ,5 r �l ��,,rE %mu Ir rl (No.�r !r I'i lA V r ) ;`' % I) Ada• „r� +rF If 3 MAP SOU RCE: DELORME TOPO NORTH AMERICA 9.0 (2010) VICINITY MAP y CITY OF DENTON LANDFILL HOI"I�1;OI1, DENTON COUNTY, TEXAS Environmental Services, Inc. SWF- 2014 -00224 EXHIBIT 1 of 4 June 18, 2015 SWF- 2014 -00224 EXHIBIT 2 of 4 June 18, 2015 SWF- 2014 -00224 EXHIBIT 3 of 4 June 18, 2015 m < y T.......... ........ ... . ......... m c d, Z m III,,,,,,,,,,,,,,,,,,,,,,,,,, ",, lax . ............ III a D I m � r Z p D O i (n ill Ip m� � z� vo 0 � 0 C7 ,, "„ o ......... „ "S „ o„ IM �,, "' Z III, 0 O O III " " "' "" "III nom ° c �,,.° �z_ r" lilt,,,,,,,,,, D O moz �-n cn r- SWF- 2014 -00224 EXHIBIT 4 of 4 June 18, 2015 o° 0 0 a Mill Branch CREDIT SALES AGREEMENT This CREDIT SALES AGREEMENT (hereinafter referred to as "Agreement ") is made and entered into this day of . . . . ....... ...... _, 2015 by and between MILL BRANCH, LLC, a Delaware limited liabity company (hereinafter referred to as "MB "), and the City of Denton, Texas (hereinafter referred to as "Purchaser "). 1. PROJECT NAME: City of Denton Landfill (hereinafter the "Project ") USACE PERMIT NUMBER: SWF- 2014 -00224 USACE PERMIT TYPE: IP SERVICE AREA: Mill Branch Primary PURCHASER: City of Denton City Hall 215 E. McKinney Street Denton, TX 76201 2. PRICING: Number of credits purchased: 178.35 Credit type: 178.35 ephemeral Credit price (per unit): $1,400 Total Purchase Price $249,690.00 3. PAYMENT: 3.1 Terms. MB agrees to accept from Purchaser at the time of execution of this Agreement a nonrefundable payment in the amount of two hundred forty nine thousand six hundred ninety dollars and 00 /100 ($249,690.00), representing the Total Purchase Price. 3.2 Reservation and Delivery. Following MB's receipt of the Total Purchase Price, 178.35 Credits shall be reserved in MB's Mill Branch mitigation bank inventory and earmarked specifically for use by Purchaser. MB shall subsequently deliver such Credits to Purchaser upon receipt of notice requesting the same. No Credits shall be delivered, transferred, or otherwise conveyed by MB to Purchaser pursuant to this Agreement prior to MB's receipt of the Total Purchase Price. 5. INFORMATION AND LIANCE: MB and Purchaser acknowledge and agree that MB is relying upon information provided solely by Purchaser in providing compensatory mitigation pursuant to this Agreement. Purchaser shall indemnify and hold MB harmless in the event that any such information proves to be inaccurate, false, or otherwise deficient or in error. Purchaser warrants that the information provided to MB for the purposes of determining the nature and amount of compensatory mitigation for the Project is accurate and complete to the best of their knowledge. MB shall not be liable for inaccuracies or omissions in the calculation or determination of the amount of compensatory mitigation required for the Project. 6. LIABILITY FOR COMPENSATORY MITIGATION: In consideration for receiving the Total Purchase Price from Purchaser, MB shall assume liability for providing compensatory mitigation under the terms of this Agreement and in accordance with U.S. Army Corps of Engineers Section 404 permit and Texas Commission on Environmental Quality Section 401 certification requirements. 7. FINAL SALE: The sale of credits, defined specifically as the receipt of the Total Purchase Price by MB pursuant to this Agreement is final. Under no circumstances shall Purchaser be entitled to a refund of any amounts provided to MB for the reservation or delivery of Credits under the terms of this Agreement. OA .V. COMPLETE AGREEMENT: This Agreement constitutes the full and complete agreement by and between MB and Purchaser for payment and the reservation, delivery, qnd sale of compensatory mitigation credits for the Project. 9. RECEIPT OF TOTAL PURCHASE PRICE: By executing this Agreement tb r, —1 Parties acknowledge that Purchaser has tendered to MB the Total Purchase Price set � 6 - in Paragraph 2, above. I 10. GOVERNING LAW: This Agreement shall be construed, interpreted, and enforced solely under the laws of the State of Texas. 11. NONASSIGNABILITY: This Agreement may not be assigned without the consent, in writing, of the other Party. 12. AGREEMENT BINDING ON SUCCESSORS: This Agreement shall be binding upon the Parties, their legal representatives, heirs, successors, and assigns to the full extent of prevailing law. a. 0 , . so EMISTOTWA-749 Me zmm��� [on 91 j 0 j Mill Branch XX November 2015 Mr. XXXXX XXXXXXX US Army Corps of Engineers 819 Taylor Street Room 3A37 Fort Worth, TX 76102 Delivered via email RE: CREDIT TRANSACTION NOTIFICATION for SWF- 2014 - 00244, CITY OFDENTON LANDFILL Dear Mr. XXXXXXXX: Per our Mill Branch Mitigation Banking Instrument (M'LAI, " "I -20 J0- 00321), we art. required to report all credit sales within thirty (30) days of tra i isaccioii. This is letu,,r serves as notice that a transaction was concluded on XX November 2015 betweeut Mill Brai ch Mitigation Bank and the City of Denton to coverw riritigatiaarr regtiireirirwms under ,'SWF -20 4- 00244. The Mill Branch RIBITS Ledger will be delAted appropriately WiLhirr 30 days from the date of fl� -ds transaction. The number of credits purchased by the boyru e ar - o One hundred seventy eight and thirty five handredths Ephemeral In- Channel Credits (ICC) to be debited from the following portion of Mill''Branch Mitigation Bank: o Trib 3 - 178.35 [C Additional specifics regardin' Lhe l�rirrthaser and other relevant USACE permit information have been recorded in the Mill Hr,, rnt lr Ledger ors regrfired reader our MBI (Section IV Part 4). Sincerely, J. Adam Itigg„ e , PhD President Cc: Brent Jasper, U ACt Vance Keime^r,:`C'i y of Denton Lee Sherrod, Horizon Environmental Services, Inc. RESOLUTION NO. A RESOLUTION AUTHORIZING THE FILING AND ACCEPTANCE OF A CONTRACT BY AND BETWEEN THE CITY OF DENTON, TEXAS (SOLID WASTE AND RECYCLING DEPARTMENT) AND MILL BRANCH, LLC, FOR THE CITY'S PURCHASE OF MITIGATION CREDITS TO OFFSET IMPACTS TO THE WATERS OF THE UNITED STATES IN ACCORDANCE WITH THE U.S. ARMY CORPS OF ENGINEERS, SECTION 404 PERMIT AND THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, SECTION 401 CERTIFICATION REQUIREMENTS, IN THE PREPARATION, DEVELOPMENT AND SUBMITTAL OF A PERMIT APPLICATION FOR LATERAL EXPANSION AND ASSOCIATED SERVICES PERTAINING TO THE CITY OF DENTON LANDFILL (MSW PERMIT NO. 1590A); AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR IN THE STATED AMOUNT OF $249,690; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Environmental Protection Agency ( "EPA ") has upgraded its "Resource Conservation and Recovery Act" ( "RCRA "), Subtitle D, to be more protective of public health and the environment. This particular Federal rule applied to Municipal Solid Waste ( "MSW ") facilities, and became effective on October 9, 1993. The RCRA update required many improvements in the design and operating criteria for MSW landfills, including the requirement for landfills to be constructed with composite liners; and WHEREAS, the State of Texas followed the EPA subsequently by updating the "Texas Solid Waste Disposal Act" ( "TSWDA ") which TSWDA met or exceeded the RCRA, Subtitle D requirements. As a result, all MSW landfills in Texas had to have their landfill permits reissued to meet the new requirements. At that time Denton submitted a landfill permit application that met all of the new regulatory design and operating requirements that provided for an expansion of the landfill increase from 36 acres to 229 acres (a 153 acre footprint), in order to meet Denton's projected mid -term disposal needs; said permit was approved by the TCEQ in October 1997; and WHEREAS, in the mid - section of the designed landfill site was a small intermittent stream that handled the storm water drainage from the field, which fed into another small intermittent stream that fed into Pecan Creek. The drainage from the field was replaced with two drainage conveyances along the perimeter of the landfill, which then drained back into the same stream segment that fed into Pecan Creek; the City received authorization in 1995 to fill the intermittent stream under Nationwide Permit No. 26. No action was taken and the permit expired; and WHEREAS, upon conducting a preliminary review of the existing site and review of its permit, as part of the development of a permit amendment to expand the landfill, staff discovered that not all of the stream was removed (1,776 feet). Staff immediately contacted the U. S. Army Corps of Engineers ( "USACOE ") to begin the process to obtain a new authorization to complete the necessary work. Both the public notice and comment period required by law are now complete. USACOE will issue the permit upon the completion of the payment by the City of mitigation bank credits in the amount of $249,690; and WHEREAS, the Council hereby concludes that this Resolution is necessary and in the best interests of the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The recitations contained in the Preamble of this Resolution are true and correct and are hereby incorporated as a part of this Resolution. SECTION 2. The City Council hereby authorizes the City Manager, or his designee, to execute and deliver the above - referenced "Contract for the Purchase of Mitigation Credits" wherein the City of Denton, Texas is purchasing mitigation credits from Mill Branch, LLC" substantially in the form of contract that is attached hereto and incorporated herewith by reference; and the City Manager, or his designee, is hereby further authorized to expend funds as provided in and required by the Contract. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY ME APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY WE 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 -1136, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services CM/ ACM: Jon Fortune Date: November 17, 2015 SUBJECT Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment (UAAA) No. 002 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $1,627,185.71; 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 the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6 -0). BACKGROUND AGL Constructors (AGL) is currently widening and improving IH35E for the Texas Department of Transportation (TxDOT) in various stages from Interstate 635 in Dallas to US Highway 380 in Denton. As part of that effort, AGL is responsible for all phases of detailed design, right -of -way (ROW) and easement acquisitions, utility relocations and roadway construction. AGL has been interfacing with all of the municipalities and various utility providers along the entire corridor in order to coordinate their design efforts and the accommodation of the utilities along the highway. As an agent for TxDOT, AGL has been negotiating with the utility providers to either relocate their assets out of the widened ROW into easements or by providing space for them within the highway's utility accommodation zone, depending on the existing locations of the utilities prior to the IH35E Managed Lanes project. The mechanism by which AGL facilitates this work with a municipality is a Project Utility Adjustment Agreement (PUAA). A PUAA can be set up so that the affected utility provider designs and constructs the necessary relocations or so that the "Developer" (AGL in this case) provides this service. In either case, utility relocations and adjustments are reimbursable through AGL's contract with TxDOT since IH35E is on the interstate highway system, including the provision of new easements to replace existing easements where necessary and applicable. The IH35E Managed Lanes project has varying effects on Denton Water Utilities, depending on the phase or location along the corridor. For instance, south of FM 2181 in Corinth the highway is being fully improved to its anticipated ultimate condition or capacity. North of FM 2181 through US Highway 380 in Denton the highway is mainly being improved to an interim level with rebuilt lanes, additional general purpose lanes, replaced bridge decking, ramp adjustments and some frontage road modifications. The primary exception to City of Denton Page 1 of 4 Printed on 11/12/2015 File #: ID 15 -1136, Version: 1 the interim improvements scenario through Denton is the bridge at North Texas Boulevard with its associated ROW and utility adjustments, which will be placed in the ultimate or end condition (no real way to add the main lane capacity without installing the full interchange at this location). Denton Water Utilities has a number of assets along the IH35E corridor which will be impacted by both the ultimate roadway improvements (the raw water lines from Lake Lewisville and water distribution and wastewater collection lines in the areas around North Texas Boulevard) and the interim roadway improvements (water distribution and wastewater collection lines between Post Oak Road and US Highway 380). The most significant of these assets are the 27 -inch and 30 -inch raw water lines from the intake on Lake Lewisville that cross IH35E in Hickory Creek and Lake Dallas. These reinforced concrete pipelines were constructed in 1955 and 1975, respectively. The raw water lines are a critical piece of the Water Department's infrastructure, routing raw water from the Lake Lewisville intake to the Lake Lewisville Water Treatment Plant which provides roughly 50% of the City of Denton's finished water supply. On February 9, 2015, the Public Utility Board recommended approval of PUAA 35E -U -0503 between the City of Denton and AGL Constructors in the amount of $329,435.10 for installation of the sacrificial valves and tie - in stub -outs only. The PUAA was subsequently approved by City Council on March 3, 2015. All of the costs associated with PUAA 35E -U -0503 were borne by AGL Constructors. The Public Utility Board recommended approval of UAAA 001 for the actual adjustment of these two raw water lines on June 22, 2015. UAAA 001 was approved by City Council on June 30, 2015 in the amount of $2,916,668.95, $447,853.65 of which is payable by the City of Denton for City requested betterments. As previously discussed, PUAA 35E -U -0503 serves as the base agreement between the City of Denton and AGL Constructors for all utility adjustments associated with the IH35E Managed Lanes project, and all additional work associated with the IH35E utility relocations will be performed through Utility Adjustment Amendment Agreements (UAAA). The second of these amendments, UAAA 002, is attached hereto as Exhibit 1. This agreement is for the construction of the actual relocations and upsizing (in the case of two water lines from 8 -inch diameter to 12 -inch diameter) of existing water and wastewater lines. The increased line size was provided by the Water Utility Department in anticipation of future system demands and needs and to help offset the loss in fire flow capabilities from the abandonment of another water line. AGL has been working with staff to devise relocation plans for these utilities that are in conflict with improvements associated with the IH35E project over the past several months. The plans attached to UAAA 002 in Exhibit 1 depict adjustments of water and wastewater lines along the IH35E Managed Lanes corridor from Post Oak Road on the south to Bonnie Brae Road on the north. The adjustments included in UAAA 002 are also verbally described in the Transmittal Memo from AGL Constructors to Don Toner with TxDOT located in the front portion of UAAA 002 in Exhibit I. Staff presented an earlier version of this UAAA 002 to PUB on August 10, 2015. That version of the agreement included betterment costs for extra work (upsizing one of the 8" water lines and replacing failed 30 -inch raw water line and re- establishing a missing mud leg valve for a total of $92,755.70). Staff explained to PUB that the additional work to the raw water lines to replace deteriorated 30 -inch line and to re- establish the mud leg should not be included with UAAA 002 since this work was really accomplished in conjunction with PUAA 35E -U -0503 (installation of the sacrificial valves). In effect, the additional $40,773.95 incurred on the raw water lines would be considered as betterment to the PUAA, not to UAAA 002. The total cost of UAAA 002 calculated without that additional work on the raw water lines was $1,690,798.26, and the betterment was calculated as $51,981.75, or 3.07% of the total project cost plus betterment. The reason that was important is because the amount that is payable to AGL Constructors by the City is determined by multiplying the actual project costs as invoiced by the percentage calculated. For this reason, staff requested that AGL Constructors modify the previous version of UAAA 002 to remove the additional work to the raw water lines and pursue payment for that work separately. The modified UAAA 002 was to be taken to City Council on August 18, City of Denton Page 2 of 4 Printed on 11/12/2015 File #: ID 15 -1136, Version: 1 2015 for approval. The PUB recommended approval of this earlier version of UAAA 002. Unfortunately, staff subsequently found a number of errors in the plans associated with the previous version of UAAA 002 and pulled this item from consideration on the City Council agenda. Staff has been working with AGL to correct the plan documents and refine the scope of UAAA 002 since August. In addition to the other work in the agreement that has been corrected, the removal of one water line running from Bonnie Brae to Avenue D is included in the modified UAAA 002; however, the replacement line has not yet been designed and will be included in a subsequent UAAA. This work is expected to offset costs; therefore, no betterment is included in this UAAA for the increase in diameter of the two water lines previously discussed. The total projected cost for the relocation and adjustment of the various lines at their existing sizes as shown in UAAA 002 is $1,627,185.71. Since no betterment costs are included in UAAA 002, all of the costs are payable by AGL Constructors at TxDOT's expense (no cost to the City). OPTIONS 1. Approve Utility Adjustment Agreement Amendment 002. 2. Reject Utility Adjustment Agreement Amendment 002. RECOMMENDATION Staff recommends approval of Utility Adjustment Agreement Amendment 002 between the City of Denton and AGL Constructors in the amount of $1,627,185.71 for the adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Subsequent adjustments to amend the base PUAA to include other utility adjustments will be brought before PUB and City Council as they are developed. ESTIMATED SCHEDULE OF PROJECT AGL Constructors stands ready to proceed with the construction of these relocations. Upon approval by City Council, the agreement will be forwarded to TxDOT for further execution after which AGL Constructors will be given the notice to proceed. It is projected that the utility relocations included in Utility Adjustment Agreement Amendment 002 will be completed by approximately February 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) 1. Public Utilities Board - February 9, 2015. 2. City Council - March 3, 2015. 3. Public Utilities Board - June 22, 2015. 4. City Council - June 30, 2015. 5. Public Utility Board - August 10, 2015. 6. Public Utility Board - October 26, 2015. FISCAL INFORMATION All costs associated with the adjustment of City of Denton facilities located within the IH35E Managed Lanes Corridor included in UAAA 002 in Exhibit 1 will be borne in total by AGL Constructors. City of Denton Page 3 of 4 Printed on 11/12/2015 File M ID 15 -1136, Version: 1 EXHIBITS 1. Ordinance. 2. Utility Adjustment Agreement Amendment (UAAA) 002. Respectfully submitted: Frank G. Payne, P.E. City Engineer City of Denton Page 4 of 4 Printed on 11/12/2015 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE "UTILITY ADJUSTMENT AGREEMENT AMENDMENT 002 FOR PROJECT UTILITY ADJUSTMENT AGREEMENT NO. 35E -U- 0503" WHICH AMENDS THE ORIGINAL "PROJECT UTILTY ADJUSTMENT AGREEMENT" IN THE AMOUNT OF $1,627,185.71; FACILITATING AND AUTHORIZING WATER AND WASTEWATER LINE RELOCATIONS FOR THE INTERSTATE HIGHWAY 35E PROJECT, IN SUBSTANTIAL CONFORMITY WITH THE PREVIOUSLY EXECUTED TEXAS DEPARTMENT OF TRANSPORTATION AGREEMENTS WITH THE DEVELOPER, AGL CONSTRUCTORS, WHICH IS A CONSORTIUM COMPOSED OF ARCHER WESTERN CONTRACTORS, LLC, GRANITE CONSTRUCTION CO. AND THE LANE CONSTRUCTION COMPANY; AND THE TEXAS DEPARTMENT OF TRANSPORTATION; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Interstate Highway 35 East widening project (the "Project ") involves and flows through the City of Denton, Texas ( "City "); the Project entails, among other things, the relocation of water and wastewater utility facilities and infrastructure owned and operated by the City; and WHEREAS, pursuant to a "Comprehensive Development Agreement" ( "CDA ") which has been previously entered into by and between the Texas Department of Transportation ( "TxDOT ") and the Developer; the Developer has undertaken the obligation to design, construct, and potentially maintain the Project, which includes the relocation, or other necessary adjustment of existing utilities facilities and infrastructure that are impacted by the Project; and WHEREAS, by the Project Utility Adjustment Agreement ( "PUAA ") previously entered into by and between the City and the Developer, and approved by TxDOT, such agreement provides for the adjustment of certain water and wastewater utilities owned and operated by the City; and WHEREAS, it has become necessary to modify and amend the Project Utility Adjustment Agreement ( "PUAA ") entered into on March 3, 2015, to further add to or adjust the City's water and wastewater facilities and infrastructure, namely various City water and wastewater lines along the Interstate Highway 35 East corridor, and the City and Developer propose entering into Utility Adjustment Agreement Amendment No. 002 ( "35E -U -503- 002 "), which covers adjustments not covered under the original PUAA, as well as to provide for the terms and conditions which are required by the proposed Utility Adjustment Agreement Amendment No. 002; and WHEREAS, the City Council finds that this ordinance is in the public interest and accordingly; NOW THEREFOR THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the Preamble to this ordinance are hereby incorporated by reference into this Ordinance. SECTION 2. The City Manager, or his designee is hereby authorized to execute the Utility Adjustment Agreement Amendment 002 for Project Utility Adjustment Agreement No. 35E -U -503 -002" ( "Amendment No. 002 to PUAA ") for water and wastewater facilities and infrastructure relocations for the Interstate Highway 35 Project, with the Developer, AGL Constructors, LLC; such Agreement to be approved by the Texas Department of Transportation, in substantially the form of the "Amendment No. 002 to PUAA" which is attached hereto as Exhibit "A," and is incorporated herewith by reference. SECTION 3. The City Manager or his designee is hereby authorized to expend funds as provided for in the attached "Amendment No. 002 to PUAA" for Project betterments at the time the payment obligation arises, once the Amendment No. 002 to PUAA document is fully executed and delivered by all parties thereto, and the Project approved upon its completion by the City. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 4W f r .,4 AR HER WtT.� 1 ETIN • GRANITE • LANE Table of Contents Utility Adjustment Agreement Amendment 35E -U- 0503 -002 1.) Transmittal Memo 2.) Utility Assembly Checklists - Utility Adjustment Checklist - UM No Conflict Sign -Off Form - UDC No Conflict Sign -Off Form 3.) Executed Project Utility Adjustment Agreement "Exhibit A" - Utility Adjustment Plans & Specifications - Utility Adjustment Cost Estimate 4.) Utility Joint Use Acknowledgment (UJUA) "Exhibit C" 5.) Affidavit of Property Interest 6.) Quitclaim Deed 7.) ROW Map October 12, 2015 Mr. Don Toner SR/WA North Texas CDA Program Lead TxDOT — Strategic Projects Division 3301 W. Airport Freeway, Ste 100 Bedford, Texas 76021 817 -508 -7654 Fax 817 - 685 -7561 RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100 & 0195 -03 -072 CSJ -C No. 0196 -01 -056 & 0196 -03 -050 Limits: From FM 2181 South in Corinth To IH 35W Dear Mr. Toner, AGL Constructors would like to submit this Utility Adjustment Agreement Amendment (UAAA) Assembly 35E -U- 0503 -002 for your approval. This Assembly Package is for adjustment of City of Denton facilities located within the IH35E Managed Lanes corridor. Based on review of existing city facilities located within the limits of the attached plan set, AGL has analyzed the following water and wastewater lines to conflict with the proposed widening along IH35E: Adjustment of Conflict ID 503 -068: The relocation of Conflict ID 503 -068 will consist of the installation of approximately 111 if. of 8" PVC C900 waterline, 580 If. of 12" PVC C900 waterline, 1501f. of 12" DI Class 52 waterline, 158 If. of 24" steel casing, and appropriate appurtenances from ML Station 1977 +76 to ML Station 1984 +66. The proposed 12" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to conflict 503 -071 on the southwest side of IH 35E at ML Station 1977 +76. The proposed 12" waterline will travel west for 3 If., turn northwest, travel for 4 If. and enter a 24" steel casing at ML Station 1977 +83. The waterline and steel casing will continue northwest for 69 If. and the waterline will exit the steel casing at ML Station 1978 +53. The waterline will continue northwest for 1 If. turn north, travel for 35 If., turn northwest, travel for 301 If., and connect to a proposed 12" x 8" tee at ML Station 1981 +82. The newly introduced 8" waterline will travel southwest for 3 If., turn northwest, travel for 15 If., turn west, travel 64 If., turn south, travel 1 If., and connect to an existing 8" waterline at ML Station 1982 +55. The initial waterline will continue to the northwest for 17 If, turn west, travel 1 If., and enter a 24" steel casing at ML Station 1982 +00. The waterline and steel casing will continue west for 891f. and the casing will end at ML Station 1982 +80. The 12" waterline will continue west for 11 If., turn north, travel for 67 If., turn northwest, travel for 66 If., turn west, AG ','-s, CONSTRUCTORS ARCHER WESTERN • GRANITE • LANb r r � RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100 & 0195 -03 -072 CSJ -C No. 0196 -01 -056 & 0196 -03 -050 Limits: From FM 2181 South in Corinth To IH 35W travel for 66 If., turn north, reduce to an 8" waterline, travel 28 If., and connect to an existing 8" wator lin ' at-M] , Station 1.984 +66 _ Adjustment of Conflict ID 503 -069: The relocation of Conflict ID 503 -069 will consist of the installation of approximately 6341f. of 8" PVC C900 waterline, 157 If. of 12" PVC C900 waterline, 109 If. of 16" steel casing, and appropriate appurtenances from ML Station 1979 +14 to ML Station 1985 +29. The proposed waterline relocation is replacing an existing 8" line and a portion of an existing 12" line that conflict with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 8" waterline on the northeast side of IH 35E at ML Station 1979 +14. The 8" waterline will travel north for 5 If., turn northwest, travel for 64 If., turn north - northwest, travel 6 If., and connect to Conflict ID 503 -071 with a 8" x 12" tee at ML Station 1979 +84. The 12" waterline will continue north- northwest for 32 If., turn north, travel for 521f., and connect to a 12" x 8" tee at ML Station 1980 +36. The newly introduced 12" waterline will run north for 58 If., turn west, travel for 151f., and connect to an existing 12" waterline at ML Station 1980 +77. The initial line will reduce to an 8" waterline, travel west for 4 If. and enter a proposed 16" steel casing at ML Station 1980 +39. The waterline and steel casing will travel for 41 If. and the waterline will exit the steel casing at ML Station 1980 +73. The waterline will continue west for 2 If., turn southwest, travel for 621f., turn northwest, travel 314 If., turn north, 491f., turn west, travel for 161f., and enter a 16" steel casing at ML Station 1984 +61. The waterline and steel casing will continue west for 68 If. and the waterline will exit the steel casing at ML Station 1985 +27. The waterline will continue west for 3 If. and connect to an existing 8" waterline ML Station 1985 +29. Adjustment of Conflict ID 503 -070: The relocation of Conflict ID 503 -070 will consist of the installation of approximately 200 If. of 16" C905 PVC wastewater line, 359 If. of 12" C900 PVC wastewater line and appropriate appurtenances from ML Station 1979 +12 to ML Station 1984 +58. The proposed 16" and 12" wastewater lines are replacing an existing 12" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will begin at a proposed wastewater manhole on the northeast side of IH 35E at ML Station 1979 +12. The 16" wastewater line will travel northwest for 126 If., connect to a proposed wastewater manhole at ML Station 1980 +35, continue northwest for 74 If., connect to a proposed wastewater manhole at ML Station 1981 +04, and the 16" C905 PVC line will change to 12" C900 PVC. The 12" line will continue northwest for 359 1f. and connect to a proposed wastewater manhole at ML Station 1984 +58. AG LIK CONSTRUCTORS ARCHER WESTERN • GRANITE • LANE Wn RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100 & 0195 -03 -072 CSJ -C No. 0196 -01 -056 & 0196 -03 -050 Limits: From FM 2181 South in Corinth To IH 35W Adjustment of Conflict ID 503m- 071: The relocation of Conflict ID 503 -071 will consist of the i�t t illa�lien f a prow i n el 457 If. of .12'" PVC C90�0'waterlitie, 22 � °f. of 12" 1'�1P Class 52 AW WA: C 150 waterline, 4121f. of 24" steel casing, and appropriate appurtenances from ML Station 1977 +81 to 1979 +85. The proposed 12" waterline is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 8" waterline on the southwest side of IH 35E at ML Station 1977 +81. The 12" waterline will travel east 61f., turn northeast, travel for 221f., turn north, travel for 18 If. and enter a proposed 24" steel casing at ML Station 1977 +80. The waterline and steel casing will travel north for 412 If., where the waterline will exit the steel casing at ML Station 1979 +81. The waterline will continue to the north for 12 If., turn northeast, travel for 4 If., and connect to Conflict ID 503 -069 with a 12" x 8" tee at ML Station 1979 +85. Adjustment of Conflict ID 503 -072: The relocation of Conflict ID 503 -072 will consist of the installation of approximately 212 If. of 8" SDR26 PVC wastewater line and appropriate appurtenances from ML Station 1982 +62 to 1984 +41. The proposed 8" wastewater line is replacing an existing 8" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will begin at a proposed wastewater manhole in Avenue C at ML Station 1982 +62. The 8" wastewater line will travel north for 58 If., connect to a proposed manhole at ML Station 1982 +84, turn northwest, travel for 1531f., and connect to a proposed manhole at ML Station 1984 +41. Adjustment of Conflict ID 503 -088: The relocation of Conflict ID 503 -088 under this UAAA shall consist of the installation of approximately 188 If. of 16" DIP Class 52 AWWA C150 waterline, 107 If. of 24" steel casing, and appropriate appurtenances from ML Station 1716 +39 to 1718 +13. The proposed 16" waterline is replacing an existing 16" line that conflicts with the proposed improvements and reconstruction for IH 35E. The relocation will connect to an existing 16" waterline on the southwest side of IH 35E at ML Station 1716 +39. The proposed 16" waterline will travel north 11 If., turn northwest, travel for 1 If., and enter a proposed 24" steel casing at ML Station 1716 +40. The waterline and steel casing will continue northwest for approximately 107 If. and the waterline will exit the steel casing at ML Station 1717 +46. The waterline will continue northwest for 60 If., turn west, travel for 10 If., and connect to an existing 16" waterline at ML Station 1718 +13. The abandonment of the existing facilities shall be completed in accordance with AGL's Demolition and Abandonment Plan, UAR requirements, and details that are identified in the attached plans. All NITE • LANE a� l� RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -002, City of Denton, CSJ -R No. 0196 -01 -100 & 0195 -03 -072 CSJ -C No. 0196 -01 -056 & 0196 -03 -050 Limits: From FM 2181 South in Corinth To IH 35W existing facilities identified in this immediate area that are not being adjusted at this time will be recorded under a future Abbreviated Utility Assembly to be executed in accordance with the Development Agreement (DA). In accordance with the DA, replacement cost for "like kind" relocations associated with this adjustment are 100% compensable to the City of Denton. All work being completed under this UAAA shall be completed by AGL and or their subcontractors. The total cost to relocate the City of Denton facilities is $1,627,185.71. The breakdown of cost based on the Right of Way CSJ's are as follows: CSJ 0196 -01- 100 =5.87% ($95,515.80); CSJ 0195 -03- 072= 94.13% ($1,531,669.91). The current schedule for work under this UAAA began on or about July 13, 2015, under ERFC, and substantial completion is identified to be prior to January 11, 2016. We respectfully recommend your approval of this Utility Adjustment Agreement Amendment (35E- U -0503 -002) as submitted. If you have any questions or require additional information, please contact me through the information provided below. Sincerely, Signed :................0 Rich Krog, AGL Utility Manager 1.214.483.7131 (Direct) 1.512.207.0782 (Mobile) Email: rkrog@ltraengineers.com Cc: AGL Document Control IH35- Checklist Rev. 11/2012 Page 1 of 4 U -No .: 35E-U-0503-002 Utility Owner Name: County: Denton TxDOT UTILITY ADJUSTMENT CHECKLIST (To be included with submittal) of Denton Jurisdictions: 0196 -01 -100 & 0195 -03 -072 Estimated Dollar Amount of Utility Adjustment/Cost to Developer: $1,627,185.71 ROW CSJ No.: 0196 -01 -100 & 0195 -03 -072 Construction CSJ No.: 0196 -01 -056 & 0196 -03 -050 Section or Segment Number: Segment 4 ® Actual Cost or ❑ Lump Sum (Check one) Federal -Aid ROW Project No.: IM 0356 (438) Alternate Procedure Approval Date: September 4, 2013 Highway Station Limits (To & From): IH35E — Segment 4: ROW CSJ 0196 -01 -100 & 0195 -03 -072 From: FM 2181 South in Corinth To: IH 35W Description/Scope of Work: Adjustment Utility : �t 593 -068 µS03- 069, 503 - 070 503- 071,IT503 -072 &m 503- _.. 088: Relocation will consist of 745 If. of 8" PVC C900 waterline, 1501f. of 12 ". DI Class 52 waterline, 11941f. of 12" PVC C900 waterline, 221f. of 12" DIP Class 52 AWWA C150 waterline, 1881f. of 16" DIP Class 52 AWWA C150 waterline, 2121f. of 8" SDR26 PVC wastewater line, 3591f. of 12" C900 PVC wastewater line, 2001f. of 16" C905 PVC wastewater line, 1091f. of 16" steel casing, and 6771f. of 24" steel casing placed along IH35E from ML Station 1716 +39 to ML Station 1985 +29. Adjustments shall also include a crossing of IH35E near ML Station 1979 +00. I. Yes ® No ❑ N/A ❑ Approved & current ROW Maps on file with TxDOT? 2. Yes ® No ❑ N/A ❑ Is the Utility Adjustment within the Facility ROW limits or directly related to work required within Facility ROW limits? FR IH35- Checklist Rev. 11/2012 Page 2 of 4 3. Yes ® No ❑ N/A ❑ Are explanations and clarifications included in the transmittal to describe unique conditions affecting the Utility? 4. Yes ® No ❑ N/A ❑ Have (3) identical originals of the Utility Assembly with plans been submitted, of which one original should be color- coded? 5. Yes ® No ❑N /A ❑ Has the Developer's Utility Design Coordinator located on the 11. Yes ® No ❑ N/A ❑ Is the Utility consultant- engineering contract reviewed and approved by the Developer's Utility Manager (UM)? 12. Yes ® No ❑ N/A ❑ Are all forms submitted complete and correct for the situation/circumstance of the Utility Adjustment? 13. Yes ❑ No ❑ N/A ® Has the Statement Covering Utility Construction Contract Work (TxDOT Form ROW -U -48) been submitted for work completed by an owner - managed contractor? 14. Yes ®No ❑ N/A ❑ Is the Utility Assembly folded so as to fit into an 8.5" x 11" file? 15. Yes ❑ No ® N/A ❑ Are any of the proposed Utility facilities installed longitudinally inside the control of access, excluding areas near ramp terminals? 16. Yes ❑ No ❑ N/A ® Has Barlow's Formula information been submitted for unencased high - pressure pipelines? The following information is required to complete Barlow's formula. S =Yield Strength, Wall thickness = t, Outside Diameter = D, Design Factor = F. Maximum Operating Pressure must also be given and compared to the pressure plans the major items of material listed on the estimate by scaling or stationing? 6. Yes ® No ❑ N/A ❑ Have the existing and proposed Utility facilities been plotted on the ROW map and attached with this submission? 7. Yes ® No ❑ N/A ❑ Have the Utility Adjustments been designed for the Proposed Configuration? 8. Yes ® No ❑ N/A ❑ Has the Utility Owner signed the plans for a Developer Managed PUAA (DM)? 9. Yes ❑ No ❑ N/A ® Has the Utility Owner signed the plans for an Owner Managed (OM) PUAA that allows for the Developer to design for the Utility Adjustment? 10. Yes ❑ No ❑ N/A ® If the agreed sum method has been marked, has a detailed, itemized estimate and matching plans been provided? 11. Yes ® No ❑ N/A ❑ Is the Utility consultant- engineering contract reviewed and approved by the Developer's Utility Manager (UM)? 12. Yes ® No ❑ N/A ❑ Are all forms submitted complete and correct for the situation/circumstance of the Utility Adjustment? 13. Yes ❑ No ❑ N/A ® Has the Statement Covering Utility Construction Contract Work (TxDOT Form ROW -U -48) been submitted for work completed by an owner - managed contractor? 14. Yes ®No ❑ N/A ❑ Is the Utility Assembly folded so as to fit into an 8.5" x 11" file? 15. Yes ❑ No ® N/A ❑ Are any of the proposed Utility facilities installed longitudinally inside the control of access, excluding areas near ramp terminals? 16. Yes ❑ No ❑ N/A ® Has Barlow's Formula information been submitted for unencased high - pressure pipelines? The following information is required to complete Barlow's formula. S =Yield Strength, Wall thickness = t, Outside Diameter = D, Design Factor = F. Maximum Operating Pressure must also be given and compared to the pressure if IH35- Checklist Rev. 11/2012 Page 3 of 4 calculated with Barlow's. The Barlow calculation must be shown with the submission. 17. Yes ❑ No ❑ N/A ® If the pipeline is unencased, is there adequate coating, wrapping and cathodic protection? 18. Yes ® No ❑ N/A ❑ Are replacement Utility ROW charges justified and supported? 19. Yes ❑ No ® N/A ❑ If yes to #18, is an affidavit and an ownership instrument (Le. easement, license or deed) included? 20. Yes ® No ❑ N/A ❑ Do Utility Adjustment plans demonstrate Utility Accommodation Rules compliance, including minimum depth of cover from proposed grade and casing requirements? 21. Yes ®No ❑ N/A ❑ Is the proposed Utility Adjustment shown on the plans with stationing and offsets from centerline, edge of pavement, or ROW lines? 22. Yes ® No ❑ N/A ❑ Are backfill requirements met? 23. Yes ❑ No ❑ N/A ® Is a schedule of work provided by /required of the Utility Company 24. Yes ❑ No ® N/A ❑ 25. Yes ❑ No ❑ N/A 26. Yes ❑ No ❑ N/A 27. Yes ❑ No ❑ N/A 28. Yes ❑ No ❑ N/A 29. Yes ❑ No ❑ N/A 30. Yes ® No ❑ N/A ❑ 31. Yes ® No ❑ N/A ❑ 32. Yes ❑ No ® N/A ❑ 33. Yes ® No ❑ N/A ❑ if the Utility Adjustment is large and complex? Is a Betterment credit applicable? If yes to #24, is the credit calculated and applied properly? Is accrued depreciation credit applicable? If accrued depreciation is applicable, is credit applied properly? Is salvage credit applicable? If salvage credit applicable, is the credit applied properly? Are overheads and loadings checked for reasonableness? Are cost estimate extensions checked? Is a correct & recorded Quitclaim Deed (TxDOT Form ROW -N- 30) submitted, if required? Has a recommendation for approval been stated on the transmittal memorandum? Fq IH35- Checklist Rev. 11/2012 Page 4 of 4 34. Yes ❑ No ® N/A ❑ Is the Utility Adjustment in only one jurisdiction? 35. Yes ® No ❑ N/A ❑ If the Utility Adjustment is in more than one jurisdiction, have the percentages in each jurisdiction been detailed in the transmittal memorandum? 36. Yes ® No ❑ N/A ❑ Are the sign -off forms attached? 37. Yes ® No ❑ N/A ❑ Have the plans for the Utility Adjustment been sealed by a Registered Professional Engineer? Prepared by: Utility i 0 ig vi r(finator pP y . Approved b _ �"� Utility Mallt�ti:�c Recommended for Approval by: _.. t1" l�ty C o ml Dater Comments: IH35E- USO -UM Rev. 6/2013 Page l of 1 Utility Manager: Date plans received: Utility Company: Assembly "U" number: Type of Utilities: Date on Utility's plans: Developer's Utility Manager Utility No Conflict Sign -Off Form Rich Krog City of Denton µ 35E -U -0503- 002 .................° .... »,. _ _....... ..,,.,, wm........... °... . .............. ��.... ...No....of sheets Utility's..pl��...�.: 3i 10/12/15 plans: I, the Utility Manager (UM) working on behalf of the Developer (AGL) certify that a review of the above referenced Utility plans concerning the proposed highway improvements on the IH 35 Managed lanes has been completed and have not identified any conflicts between the Utility's proposed relocation and any existing and /or proposed Utilities. The proposed Utility plans conform to Title 43, Texas Administrative Code, Section 21.31 — 21.56 of the Utility Accommodation Rules. F] Check box if there are any areas of concern and insert comments below: Print Name: (Utility Manager - UM) Rich Krog D tov, _. . . ................ Sign Name: (UM) Print Name: (Utility Design Coordinator — UDC) Joseph Murphy....° .....W m - . ,. ° Date:— .. Sign Name: (UDC) Utility Coordination Firm Name: LTRA This form must be completed /signed and included in each Utility Assembly submitted to the Texas Department of Transportation. Puree A IH35E -USO -UDC Rev. 6/2013 Page 1 of r Utility Design Coordinator: Date plans received: Utility Company: Assembly "U" number: Type of Utilities: Date on Utility's plans: Developer's Utility Design Coordinator Utility No Conflict Sign -Off Form Joseph Murphy 70112115 �„�.v........�_ a�- n.,. �ma .................... �����. �� ,,.....- _.�h...�.- .��.,m,...,_. Cfly of Denton 35E -U- 0503 -002 ... ��w.,. �....... _��e ._...wm.___..............�., . .�.� ,_-.�_....._�.......�...... Water& Wastewater Lines 10/12/15 No. of sheets in Utility's plans: 32 I, the Utility Design Coordinator (UDC) on behalf of the Developer (AGL ) certify that a review of the above referenced Utility plans concerning the proposed highway improvements on the IH 35 Managed Lanes has been completed and have not identified any conflicts between the Utility's proposed relocation and any design features. Design features include but are not limited to pavement structures, drainage facilities, bridges, retaining walls, traffic signals, illumination, signs, foundations, duct/conduit, ground boxes, erosion control facilities, water quality facilities and other Developer- Managed Utilities. Any design changes to the IH 35 Managed Lanes roadway after the signing of this form will be coordinated through the Developer's Utility Manager and the affected Utility Owner. ❑ Check box if there are any areas of concern and insert comments below: Print Name: (UDC) Joseph Murphy _ Date: / Utility Design Coordinator (UDC)���� Sign Name: (UDC) .Date: ..PIU_. - 40�� Utility Coordination Firm Name: LTRA�..mm,m�� __......�.....�.a._..,w This form must be completed /signed and included in each Utility Assembly submitted to the Texas Department of Transportation. Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 1 of 6 Rev. 08/12 County: Denton Highway: 1H 35E Limits: From: FM 2181 South in Corinth To: IH 35W Fed. Proj. No.: IM 0356 (43 8) ROW CSJ No.: 0196 -01 -100 & 0195 -03 -072 Const. CSJNo.: 0196 -01 -056 & 0196- 03 -050 UTILITY ADJUSTMENT AGREEMENT AMENDMENT (Developer Managed) (Amendment No. 002 to Agreement No.: 35E -U -0503) THIS AMENDMENT TO PROJECT UTILITY ADJUSTMENT AGREEMENT (this "Amendment "), by and between AGL Constructors, hereinafter identified as the "Developer ", and the City of Denton, hereinafter identified as the "Owner ", is as follows: WITNESSETH WHEREAS, the STATE of TEXAS, acting by and through the Texas Department of Transportation, hereinafter identified as "TxDOT ", proposes to construct the toll project identified above (the "Project ", as more particularly described in the "Original Agreement ", defined below); and WHEREAS, pursuant to that certain Development Agreement ( "DA ") by and between TxDOT and the Developer with respect to the Project, the Developer has undertaken the obligation to design, construct, and potentially maintain the Project, including causing the removal, relocation, or other necessary adjustment of existing utilities impacted by the Project (collectively, "Adjustment "); and WHEREAS, the Owner and Developer are parties to that certain executed Project Utility Adjustment Agreement designated by the "Agreement No." indicated above, as amended by previous amendments, if any (the "Original Agreement "), which provides for the adjustment of certain utilities owned and /or operated by the Owner (the "Utilities "); and WHEREAS, the parties are required to utilize this Amendment form in order to modify the Original Agreement to add the adjustment of Owner facilities not covered by the Original Agreement; and WHEREAS, the parties desire to amend the Original Agreement to add additional Owner utility facility(ies), on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the agreements contained herein, the parties hereto agree as follows: 1. Amendment. The Original Agreement is hereby amended as follows: 1.1 Plans. (a) The description of the Owner Utilities and the proposed Adjustment of the Owner Utilities in the Original Agreement is hereby amended to add the following utility 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 2 of 6 Rev. 08/12 facility(ies) ( "Additional Owner Utilities ") and proposed Adjustment(s) to the Owner Utilities described in the Original Agreement; The relocation will be completed in multiple phases. Phase 1 of the relocation is covered under this amendment and relocation will consist of 745 if. of 8" PVC C900 waterline, 150 If. of 12" DI Class 52 waterline, 11941f. of 12" PVC C900 waterline, 22 If. of 12" DIP Class 52 AWWA C150 waterline, 188 ]f. of 16" DIP Class 52 AWWA C150 waterline, 212 If. of 8" SDR26 PVC wastewater line, 359 If. of 12" C900 PVC wastewater line, 2001f. of 16" C905 PVC wastewater line, 109 If. of 16" steel casing, and 677 If. of 24" steel casing placed along IH35E from ML Station 1716 +39 to ML Station 1,985+29. A j rs'ln�e ��ts shall also include a ct ossi+ ,g of 11'1;351 near 11 Station 1979 °t °00. Phase 2, will incorporate approximately 550 ft of 12" waterline extending the relocation for conflict 503 -068, off of TxDOT ROW, to the west along Underwood St and to the intersection with North Texas Blvd connecting to an existing 8" waterline. This addition to 503 -068 will eliminate the need for the relocation of waterline conflict 503 -076 adjacent to the University of North Texas and the I35E Southbound Frontage Road from North Texas Blvd to Bonnie Brae. The existing waterline conflict 503 -076 will be taken out of service and abandoned once this extension of conflict 503 -068 is placed into service. This scope and the abandonment of Waste Water Conflict 503 -077 will be included in follow on amendment UAAA -003. AGL will diligently prosecute the work to complete the entire relocation in accordance with our Agreement with the City of Denton and Texas Department of Transportation as third party beneficiary. (b) The Plans, as defined in Paragraph 1 of the Original Agreement, are hereby amended to add thereto the plans, specifications and cost estimates attached hereto as Exhibit A. (c) The Plans attached hereto as Exhibit A, along with this Amendment, shall be submitted upon execution to TxDOT in accordance with Paragraph 2 of the Original Agreement, and Paragraph 2 shall apply to this Amendment and the Plans attached hereto in the same manner as if this Amendment were the Original Agreement. If the Owner claims an Existing Interest for any of the Additional Owner Utilities, documentation with respect to such claim shall be submitted to TxDOT as part of this Amendment and the attached Plans, in accordance with Paragraph 15(a) of the Original Agreement. 1.2 Reimbursement of Owner's Indirect Costs. For purposes of Paragraph 6 of the Original Agreement, the following terms apply to the Additional Owner Utilities and proposed Adjustment: (a) Developer agrees to reimburse the Owner its share of the Owner's indirect costs (e.g., engineering, inspection, testing, ROW) as identified in Exhibit A. When requested by the Owner, monthly progress payments will be made. The monthly payment will not exceed 80% of the estimated indirect work done to date. Once the indirect work is complete, final payment of the eligible indirect costs will be made. Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. (b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall be developed pursuant to the method checked and described below [check only one box]: ® (1) Actual related indirect costs accumulated in accordance with (i) a work order accounting procedure prescribed by the applicable Federal or State regulatory body, or (ii) established accounting procedure developed by the occnct o nnn Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 3 of 6 Rev. 08/12 Owner and which the Owner uses in its regular operations (either (i) or (ii) referred to as "Actual Cost ") or, ❑ (2) The agreed sum of $— ( "Agreed Sum ") as supported by the analysis of the Owner's estimated costs attached hereto as part of Exhibit A. r!.,c ion Costs. 1.3 Advancement of Funds b Owner for "onst ' FFFF „wwwww„ (a) Advancement of Owner's Share, if any, of estimated costs Exhibit A shall identify all estimated engineering and construction- related costs, including labor, material, equipment and other miscellaneous construction items. Exhibit A shall also identify the Owner's and Developer's respective shares of the estimated costs. The Owner shall advance to the Developer its allocated share, if any, of the estimated costs for construction and engineering work to be performed by Developer, in accordance with the following terms: ® The adjustment of the Owner's Utilities does not require advancement of funds. ❑ The adjustment of the Owner's Utilities does require advancement of funds and the terms agreed to between the Developer and Owner are listed below. [Insert terms of advance funding to be agreed between Developer and Owner.] (b) Adjustment Based on Actual Costs or Agreed Sum [Check the one appropriate provision, if advancement of funds is required]: ❑ The Owner is responsible for its share of the Developer actual cost for the Adjustment, including the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both padies pursuant to this Amendment, (i) the Owner shall pay to the Developer the amount, if, any, by which the actual cost of the Betternment (as determined in Paragraph 9(b)) plus the actual cost of Owner's share ofthe Adjustment (based on the allocation seat forth in Exhibit A) exceeds the estimated cost advanced by the Owner, or (ii) the Developer shall refund to the Owner the amount, if any, by which such advance exceeds such actual cost, as applicable. ❑ The Agreed Sum is the agreed and final amount due for the Adjustment, including any Betterment, under this Amendment. Accordingly, no adjustment' (either up or down) of such amount shall be inade based oil actual costs. 1.4 Paragraph intentionally left blank. 1.5 lies ron ib lit o f"r sts of Ad'u �aLentWork. For purposes of Paragraph 4 of the Original Agreement, responsibility for tame Agreed Sumri or Actual Cost, as applicable, of all Adjustment work to be performed pursuant to this Amendment shall be allocated between the Developer and the Owner as identified in Exhibit A hereto and in accordance with §203.092, Texas Transportation Code. An allocation percentage may be determined by application of an eligibility ratio, if appropriate, as detailed in Exhibit A, provided however, that any portion of an Agreed Sum or Actual Cost attributable to Betterment shall be allocated 100% to the Owner in accordance with Paragraph 9 of the Original Agreement. 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 4 of 6 Rev. 08/12 1.6 Betterment. (a) Paragraph 9(b) (Betterment and Salvage) of the Original Agreement is hereby amended to add the following [Check the one box that applies, and complete if appropriate]: ® Tile Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, does not include any Betterment. ❑ The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, includes Betterment to the Additional Owner Utilities by reason of finserl, arplanation, e.g "replocing 12 "pipe with 24 "pipe]: The Develoler has provided to the Owner comparative estimates for (i) all work to be performed by the Developer 1mrsuant to this Amendment, including work attributable to the Betterment, and (ii) the cost to perform such work without the Betterment, which estimates are hereby approved by the Owner. The estimated cost of the Developer work under this Amendment which is attributable to Betterment is $ , calculated by subtracting (ii) from (i). The percentage of the total cost of the Developer work under this Amendment which is attributable to Betterment is %, calculated by subtracting (ii) from (i), which remainder is divided by (i). (b) If Paragraph 1.6(a) identifies Betterment, the Owner shall, after proof of implementation of betterment, advance to the Developer in sixty (60) days from receipt of invoice from Developer, the cost attributable to Betterment as set forth in Paragraph 1.6(a). ❑ The estimated cost stated in Paragraph 1.6(a) of this Amendment is the agreed and final amount due for Betterment under this Amendment, and accordingly no adjustment (either up or down) of such amount shall be made based on actual costs. ❑ The Owner is responsible for the Developer's achial cost for. (lie identified Betterment. Accordingly, upon completioli and acceptance by Owner of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Developer the actual cost of the Bctter¢nent (determined as provided below in this paragraph), Any additional payment by the Owner shall be due within sixty (60) calendar days after the Owner"$ receipt of the Developer's invoice therefor, together with supporting document ation including proof of implementation;. The actual cost of Betterment, incurred by the Developer shall be calculated by multiplying (i) the Betterment percentage stated in Paragraph 1.6(a), by (ii) the actual cost of all work performed by the Developer pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Developer to the Owner. (c) The determinations and calculations of Betterment described in this Amendment shall exclude right -of -way acquisition costs. Betterment in connection with right -of -way acquisition is addressed in Paragraph 15 of the Original Agreement. (d) If Paragraph 1.6(a) identifies Betterment, the amount allocable to Betterment in Owner's indirect costs shall be determined by applying the percentage of the Betterment calculated in Paragraph 1.6(a) to the Owner's indirect costs. The Owner's invoice to the Developer for the Developer's share of the Owner's indirect costs shall credit the Developer with any Betterment amount determined pursuant to this Paragraph 1.6(a). 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 5 of 6 Rev. 08/12 (e) For any Adjustment from which the Owner recovers any materials and /or parts and retains or sells the same, after application of any applicable Betterment credit, the Owner's invoice to the Developer for its costs shall credit the Developer with the salvage value for such materials and /or parts 1.7 Miscellaneous. (a) Owner and Developer agree to refer to this Amendment, designated by the "Amendment No." and "Agreement Number" indicated on page I above, oil all future correspondence regarding the Adjustment work that is the subject orthis Amendment and to track separately all costs relating to this Amendment and the AdJustillent work described herein. (b) [Include any other proposed amendments allowed by applicable law.] 2. General. (a) All capitalized terms used in this Amendment shall have the meanings assigned to them in the Original Agreement, except as otherwise stated herein. (b) This Amendment may be executed in any number of counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute one and the same instrument. (c) Except as amended hereby, the Original Agreement shall remain in full force and effect. In no event shall the responsibility, as between the Owner and the Developer, for the preparation of the Plans and the Adjustment of the Owner Utilities be deemed to be amended hereby. (d) This Amendment shall become effective upon the later of (a) the date of signing by the last party (either the Owner or the Developer) signing this Amendment, and (b) the completion of TxDOT's review and approval as indicated by the signature of TxDOT's representative, below. 365451 3.DOC Texas Department of Transportation Form TxDOT-DA-U-35A-DM -lH 35E Page 6 of 6 Rev. 08/12 APPROVED BY: DEVELOPER TEXAS DEPARTMENT OF TRANSPORTATION By: .......... - — - -------- — - By: Authorized Signature Duly Xt i thot I/, d Representative Printed Printed Name: Donald C. Toner, Jr., SR/WA Name: Director — Strategic Projects Right of Way Strategic Projects Division Title: -,46 . . .... ... Date: Date: . .. . ...... -X� OWNER CITY OF DENTON 0 Duly Authorized Representative Printed Name: Geor, . . . ......... 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RM Ile 1 8 9 x co C) C: T71 z 1 6 Z we 7 uj cy K LLJ < (A s" 41, x 6Z P D C, z z m 9 IL +1d'UD1O3-Jad-iOI3X1Z Oub'*D PIIJ M-WOW "MI uod uDp,ogo-oin-N3D-in-P-3SEH1X1 IIII—N -11J My 10'W" 'oa11 gloa/zI/ol moo ,Pwo a,-vn )'N ,' f / K / /�, � /�u '7 � r ' r �✓ , f��,,,���, �'"�)i„ � �<, n ,ri�„r!i..r�/`J!,r�� , , „r� r , . UT -21 -City of Denton Item CITY Unit Unit Cost Subtotal : 13 � firJl /� r, ,u ➢f ,r .,i. �� 12 x 8"� Reducer 1 EA 5 350.00 $ 350.00 12" x 8" Tee 1 EA $ 350.00 $ 350.00 12" Tee 1 EA 250.00 $ 250.00 8" Plug 1 EA $ 250.00 $ 250.00 12" Plug 1 EA 0, 350.00 $ 350.00 12 "� X 6 "� Tee 1 EA $ 250.00 $ 250.00 8" PVC Waterline 110 LF 110.00 $ 12,100.00 12" PVC Waterline 490 LF $ 200.00 $ 98,000.,00 12" PVC Waterline (Bore) r 89 LF $ 100.00 $ 8,900.00 12" DI Class 52 Water Pipe 150 LF $ 150.00 :$ 22,500.00 tee. U205 Trench Protection 4 LF $ 95.00 $ 380.00 6" Gate Valve 1 EA $ 1,500.00 $ 1,500.00 8" Gate Valve 2 EA $ 1,.,700.00 $ 3,400.00 12" Gate Valve 3 EA $ 2,500.00 $ 7,500.00 1" Air Release Valve 1 E $ 4,000,00 $ 4,00070 F'Fi Assembly! 1 $ 4,000 »00 4,000.00 Abalndonment & Removal (8" WL) 900 LA $ 10.00 $ °0'000.00 24" ID X 1/2" Thick Steel Encasement (Bore) 9 $ 565.00 $ 50,285.00 24" ID X 1/2" Thick Steel Encasement 69 LF $ 415.00 $ 28,035.00 .et'io / oaf�i 5 . j O N" if %Irrppj % /rj ,rr/ ay i ; 7 Di iYrrr ° IS r, ,wa $ 350.00 12" x 8" Reducer 1 EA $ 350.00 j 12" Tee. EA $ 350.00 $ 350,00 12 "x 8" Tee 1 EA $ 350.00 $ 350.00 8" Plug 3 E $ 250.00 1 $ 750.00 12" X 6" Tee 2 EA $ 350.00 $ 700.00 6" Gate Valves mrvry 2 EA $ 1,500.00 $ 3,000.00 8" Gate Valves 4 EA $ 1,700.00 $ 6,800,00 j 12" Gate Valve 3 EA $ 2,500,00 $ 7,500.00 1" Air Release Valve 1 EA $ 4,000 »00 $ 4,000.00 8" PVC Waterline 615 LF $ 110.00 $ 67,650.00 8" PVC C900 Waterline (Bore) 35 LF $ 345.00 $ 12,075.00 I12" PVC Waterline 14'7 LF $ 200.00 $ 29,400.00 U205 Trench Protection 345 LF' $ 95.00 $ 32,,775.00 16" ID X 1/2" Thick Steel Encasement 103 LF $ 239.00 $ 24,617.00 FHI Assembly 2 EA $ 4,000.00 $ 8,000.00 Abandonment & Removal (8" Wt.) 949 LF $ 10.00 $ 9,490.00 .^*,r ; G: r � � � � ��r r J , �rl < 4�✓ , r ��c , [ . m� � � f ,,� ��° �y 1 :ufph r �un,'v.�. . ,,. v *l� 7.1 �i, ,uM/r :J Ir. a , y l e�¢ / " r,j ; 7>k,", " t r 7 ��+a , ,'' JM r n �.6)q `7 ,,;r . �ir�,. . . .. �/ � � / � ,, y a/d%,':":ue ., l 9i 91 , ,, 1 0 � /U q� , : : ' " 1 � / Y l , ,,., r / d i, x ((� r �, 1% /� . // ;, J /,>v ; , ,/,, „ ,IR v /`111/11 l/ r ,-y, , v,i /v r . ,,7 4' Diameter Manhole , / I ./> r, ,, 3 ,r., EA $ n 3,500,00 $ 10,500.00 12" C900 DR Green PVC Wastewater Pi e 363 LF $ 80.00 $ 29,040.00 16" C905 DR25 Green PVC Wastewater Pipe 200 LF $ 85. 00 $ 7 1,()()0 .00 U205 Trench Protection 3 560 LF $ 95.00 $ 530200.00_ Abandonment & Removal (12" WW) LF 650 hF $ 10.00 $ 6,500.00 "'dew $ 95.00 $ 5,510.00 (8" WW) 266 LF $ 10.00 •• 2,660.00 'Watgr� wrr.N wrxwduw',.» vN k:� w'em'reuxo ror nimn r _ie u e 12" PVC Waterline 51 I is $ rvrvxxwu 200.00 $ 1.0,200.00 12" PVC Waterline (Borg) 412 LF $ 100.00 $ 41,200.00 12" DIP Class 52 AWWA C150 17,500.00 22 1 E $ 150.00 $ 3,300.00 U205 Trench Protection 28,800.00 9 LI $ 95.00 $ 855.00 12" Plug 20,000.00 1 EA $ 350.00 $ 350.00 12" Valves 44,405.00 2 FA $ 2,500.00 $ 5 „000.00 24” ID X 1/2" Thick Steel Encasement 4,140.00 415 L $ 565.00 $ 234,475.00 'Abandonment &Removal 8" WL � ( ) 218 __... _ .. 1v1� i $ 10.00 $ 2,180.00 4' Diameter Manhole 3 EA 11 $ 3,500.00 10,500.00 8" SDR35 Wastewater Pipe (Open Cut) 212 LF $ 70.00 M $ 14,840,00 U205 Trench Protection 58 L1= $ 95.00 $ 5,510.00 (8" WW) 266 LF $ 10.00 $ 2,660.00 'Watgr� 'S�;"v8� „��N.�N"��a2'1��;, RMEE-RgmovaN ��; � PE X MJ) Special Welded 2 EA $ 8,750.00 $ 17,500.00 AWWA With Restrained Joints 180 LF $ 160.00 $ 28,800.00 16” Gate Valves 2 EA $ 10,000 »00 $ 20,000.00 24" ID X 1/" Thick Steel Encasement 107 LF $ 415.00 $ 44,405.00 Abandonment & Removal (16" WL) 138 IT $ 30.00 $ 4,140.00 263.25 I IR $ in 95.00 $ 25,008.75 City Inspection City Engineering 1.4 hI11 a 325.00 r ,� 50,050.00 ROW Credit Parcel 118 7643 SQFT $ 14.00 $ 107,002.00 Easement Acquwsition Sheet 20 ID 503 -072 425 SQFT $ 4.71 $ 2,000.00 *OH &P - (Overhead and Profit 35 %) - Spread Factor incorporating: 1) Indirect Costs of Labor + Burden, Temporary Materials, Equipment, Equipment Operating Expense, and Subcontract. 2) Cost Add -ons of Insurances, Labor Escalation, Fuel Escalation, Joint Venture Management /Sponsor Fee, Contingency, Texas Franchise Tax, and Bond. 3) Fee and 4) Design Note: Spread factors were provided to TxDOT in the Estimate Recap of the Escrow Documents and are proprietary and confidential to the AGL Joint Venture. UTILITY JOINT USE ACKNOWLEDGEMENT Form ROW -U- JUAA -DA (Rev. 11/12) F fw, Page 1 of 2 U- Number:35E -U- 0503 -002 ROW CSJ: 0196 -01 -100 & 0195 -03 -072 County: Denton District: Dallas Highway: IH 35E Federal Project No.: IM 0356 (438) From: FM 2181 South in Corinth Projected Highway Letting Date: 11/18/13 To: IH 35W WHEREAS, the State of Texas, ( "State "), acting by and through the Texas Department of Transportation ( "TxDOT "), proposes to make certain highway improvements on that section of the above - indicated highway; and WHEREAS, the City of Denton, ("Utility"), proposes to adjust or relocate certain of its facilities, if applicable, and retain - title -to -any -property-rightsit -may- have -on- -along -or-across,--and-within-or -over- such -- limits- -oHhe - highway - -- right of way as indicated by the location map attached hereto. NOW, THEREFORE, in consideration of the covenants and acknowledgements herein contained, the parties mutually agree as follows: It is agreed that joint usage for both highway and utility purposes will be made of the area within the highway right of way limits as such area is defined and to the extent indicated on the aforementioned plans or sketches. Nothing in this Acknowledgement shall serve to modify or extinguish any compensable property interest vested in the Utility within the above described area. If the facilities shown in the aforementioned plans need to be altered or modified or new facilities constructed to either accommodate the proposed highway improvements or as part of Utility's future proposed changes to its own facilities, Utility agrees to notify TxDOT at least 30 days prior thereto, and to furnish necessary plans showing location and type of construction, unless an emergency situation occurs and immediate action is required. If an emergency situation occurs and immediate action is required, Utility agrees to notify TxDOT promptly. If such alteration, modification or new construction is in conflict with the current highway or planned future highway improvements, or could endanger the traveling public using said highway, TxDOT shall have the right, after receipt of such notice, to prescribe such regulations as necessary for the protection of the highway facility and the traveling public using said highway. Such regulations shall not extend, however, to requiring the placement of intended overhead lines underground or the routing of any lines outside of the area of joint usage above described. If Utility's facilities are located along a controlled access highway, Utility agrees that ingress and egress for servicing its facilities will be limited to frontage roads where provided, nearby or adjacent public roads and streets, or trails along or near the highway right of way lines which only connect to an intersecting road. Entry may be made to the outer portion of the highway right of way from any one or all access points. Where supports, manholes or other appurtenances of the Utility's facilities are located in medians or interchange areas, access from the through- traffic roadways or ramps will be allowed by permit issued by the State to the Utility setting forth the conditions for policing and other controls to protect highway users. In an emergency situation, if the means of access or service operations as herein provided will not permit emergency repairs as required for the safety and welfare of the public, the Utility shall have a temporary right of access to'•and from the through- traffic roadways and ramps as necessary to accomplish the required repairs, provided TxDOT is notified immediately when such repairs are initiated and adequate provision is made by Utility for the convenience and safety of highway traffic. Except as expressly provided herein, the Utility's rights of access to the through- traffic roadways and /or ramps shall be subject to the same rules and regulations as apply to the general public. -41 l °C� !�3 WI l Date Utility Form ROW -U- JUAA -DA (Rev. 11/12) Page 2 of 2 If Utility's facilities are located along a non - controlled access highway, the Utility's rights of ingress and egress to the through- traffic roadways and /or ramps are subject to the same rules and regulations as apply to the general public. Participation in actual costs incurred by the Utility for any future adjustment, removal or relocation of utility facilities required by highway construction shall be in accordance with applicable laws of the State of Texas. It is expressly understood that Utility conducts the new installation, adjustment, removal, and /or relocation at its own risk, and that TxDOT makes no warranties or representations regarding the existence or location of utilities currently within its right of way. The Utility and the State, by execution of this Acknowledgement , do not waive or relinquish any right that they may have under the law. The signatories to this Acknowledgement warrant that each has the authority to enter into this Acknowledgement on behalf of the party represented. IN WITNESS WHEREOF, the parties hereto have affixed their signatures. Owner: City of Denton Name of Utility By Arrt� hori7 Signature Print or Type Name Title: Date: �"��i�l� ._ ................... ...�..........��_.,.�.......... 4 F__L� fry InItial Date Utility The State of Texas Executed and approved for the Texas Transportation Commission for the purpose and effect of activating and /or carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By: Date: Donald C. Toner, Jr. SR/WA Director — Strategic Projects Right of Way Strategic Projects Division Texas Department of Transportation A �. Form ROW -U -1A Rev. 3/2004 Replaces Form D -15 -U1 GSD -EPC Page 1 of 2 AFFIDAVIT (for Utility Owner) U- No.35E -U- 0503 -002 THE STATE OF TEXAS § District: Dallas § County: Denton COUNTY OF DENTON § Federal Project No.: IM 0356 (438) ROW CSJ No.: 0196 -01 -100 & 0195 -03 -072 Highway No.: IH 35E (To be filled in by State) BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared George C. Campbell of the City of Denton, ( "Utility ") who after being by me duly sworn upon his/her oath deposes and says as follows: "I, am over the age of 18 years and am fully competent to testify to the matters set forth in this Affidavit. I have personal knowledge of all facts and swear that such facts are true and correct. [legal description of land] 2. ; [facts Indicating affiant's familiarity with subject land, including inspection and surveys] 3. [facts attesting to ownership, Including claims through deeds, etc.] 4. [facts showing use of property] 5. ; [facts showing nature and state of repair of enclosures or fencing] 6, [facts showing continuous possession for statutory period]. Further aff[ant sayeth not." Signature Title City of Denton Company Form ROW -U -1A Rev. 312004 Page 2 of 2 Corporate Acknowledgment State of Texas County of Denton This instrument was acknowledged before me on of by , a corporation, on behalf of said corporation. Notary Public's Signature Notice of Confidentiality Rights: If you are a natural person, you may remove or strike any of the following information from this instrument before it is filed for record in the public records: your Social Security Number or your Driver's License Number. FIEM if �a Form ROW -N -30 (Rev. 07/11) Page 1 of 2 ATE OF'1'EXA UNTY OF DEN of of cols i 'At Transportation retained, either :p q, � „ � �� ir11iff and forever t tultc6 Al iI0 the St and to that certai �id or ptiwe::1 particularly described in Exhibit ” Type in District description of QUITCLAIM DEED § ROW CSJ: 0196 -01 -100 & 0195 -03 -072 § KNOW ALL MEN BY THESE PRESENTS: 6° Texas, hereinafter referred to as Grantors, whether one or f the stiff / 6 Dollars ($ ) and other good and valuable id maid b l� e, State of Texas, acting by and through the Texas celllpt of � ° is hereby acknowledged, and for which no lien is 1- -0 t w i Imed and do by these presents Bargain, Sell, Release l� Fill �Of Grantors' right, title, interest, claim and demand in ae(l in the County of Denton, State of Texas, more wacli1c(l hereto and ij oyj,,),pt ��tca herein for any and all purposes. tion here. TO HAVE AND TO HOLD for it r 0 � tt appurtenances thereto in any manner p_xiiig IN WITNESS WHEREOF, this instrument is �,,� u rn�r tll and singular the rights, privileges, and fiif ate of Texas 60 ei% the +H30+ Form ROW -N -30 (Rev. 07111) Page 2 of 2 Acknowledgement State of Texas County of Denton ■ Wil, rii A rr I1 id 0 x i 1,47 IS, won fill I City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -1149, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of September 1, September 15, October 5, October 6, October 13, and October 20, 2015. City of Denton Page 1 of 1 Printed on 11/12/2015 CITY OF DENTON CITY COUNCIL MINUTES September 1, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 1, 2015 at 9:00 a.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 Tem Gregory, Council Member Wazny and Mayor Watts. ABSENT: None. Work Session Reports A. ID 15 -649 Receive a report; hold a discussion, and give staff direction regarding the 2015- 16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast. Mayor Watts stated that before starting to discuss the budget, he would like to have information presented regarding a new statute about the budget and budget votes. City Attorney Burgess stated that the law had changed in the last legislative session as it related to action on the budget. A vote on an ordinance that set the tax rate exceeding the effective tax rate had to be a record vote and had to be approved by 60% of the members which would be five members for a vote on the budget. Additionally, if Council failed to pass a budget, it would be set at last year's budget or at the effective tax rate, whichever was less. Chuck Springer, Director of Finance, stated that was only for the vote on the tax rate and not the vote on the budget. The vote on the tax rate had to be 5 -2 while a vote on budget could be 4 -3. He noted that he had provided questions and answers regarding the budget but did not have a formal presentation. Council Member Wazny stated that she had concerns /issues with some of the budget items. She was not on board with the $200,000 for Human Resources. One item was $125,000 for a consultant fee for a salary study. She felt the City was competitive with other cities in the area for salaries. She would also like to remove the $78,000 software for the LEEP program as was an enhancement. She would like to examine the $200,000 city -wide space study which was reduced to $150,000. There was a former space study on the books which needed to be studied further. She still had a problem with the $84,000 for an employee to water plants and trim trees on Hickory and the Square. Her constituents brought up to her the issue of employee pay increases and the message it was sending to taxpayers. As a compromise she suggested going back to pay raises across the board but use the inflation rate as a cap instead of 5 %. Council discussed how best to discuss the budget items in terms of each individual council member's list or by topic. Consensus was to discuss the budget items topic by topic instead of each Council Member presenting his /her lists individually. 41 — Funding for Convention Center Marketing. Fund portion of Community Event Center Improvements from the Tourist & Convention Fund. Springer stated that there was $150,000 set aside for future Convention Center marketing with discussion to remove and replace with funding for the Community Event Center. There were City of Denton City Council Minutes September 1, 2015 Page 2 several items posted for Closed Meeting in case Council wanted to discuss that item in Closed Session. Council Member Hawkins was in agreement with using HOT funds for the item. Council Member Johnson wanted to make sure it legally feasible to use those funds in that manner. Council Member Roden stated that he would like a legal discussion on the topic as he had concerns if this was the best route to go. He suggested saving discussion for the Closed Meeting. 42 — Learning Management Software supplemental package Springer stated that this item was paid for by more than one fund. The total package was $78,000 with $40,372 coming from the General Fund. Council Member Wazny stated that she was not convinced that was money she wanted to spend in this budget. Mayor Pro Tem Gregory asked for an explanation of the software purpose. John Whitmore, Organizational Development Manager, stated that the package had two major portions. One section was for tracking information for employees such as outside certifications or regulatory compliance. It allowed for coordination of all the certificates. It also had employee development tracking through training and development through Human Resources. Supervisors could look at that information as the software coordinated the training. The library could be used for on -line or in person for the training. Council Member Wazny felt that a good manager should know what classes and certifications his /her employees had accomplished. Council Member Roden felt that the program would centralize all of the records and allow employees to see where they were in terms of competency and encourage people to take additional training. He was not opposed to the expense. Council Member Hawkins felt that the software might encourage employees to get training faster rather than at the end of the year. Council Member Johnson stated that it seemed like a lot of money on the surface but when it included training for the software, it was more realistic. Mayor Watts stated that given the age of the current technology and the fact that two or three tasks had to be done to get the information, this software would allow a manager to get the data from their computer. Consensus of the Council was that the funding for 42 would remain in the budget. 43 — Compensation Consultant Supplemental package City of Denton City Council Minutes September 1, 2015 Page 3 Council Member Wazny stated that she did not want to spend the money for the consultant fee. Carla Romine- Haggmark, Director of Human Resources, stated that the current pay plan was done in 2007. Experts recommend a pay plan be looked at regular intervals to make sure it was keeping equity in the plan. Council Member Wazny stated that she understood the need to revisit the plan every so often. She felt it would be best served by keeping the money back for now and do at a later due to the recession that was in the middle of the review time period. City Manager Campbell stated that having a well - designed compensation plan was critical for a merit pay plan so that the job classifications were relative to each other. Those changed as the market changed. Council Member Briggs stated that she would be in favor of not doing the study this budget session. Council Member Roden questioned when it was suggested that the study be done. Council Member Wazny stated that she had watched other city and state governments do it every 10 years. 2017 would be a ten year period which would include the 4 years from the recession. Council Member Roden questioned how the recession impacted the study. Council Member Wazny stated that there was a ten year cycle with compensation review among different cities. Four years of the recession took four years out of that ten years. Council Member Roden questioned Romine- Haggmark how the recession affected the plan. Romine- Haggmark stated that with the recession, cities were not moving pay plans with freezes and no increases. They were now seeing movement in the market. Council Member Roden felt that the City needed to be sure it was on pace with other cities. Mayor Pro Tem Gregory stated that he was comfortable keeping the funding in the budget. Denton had a number of enterprise funds where it was competing directly with the private sector. Council Member Johnson stated that he was in favor of keeping the funding but would like to challenge thinking to make sure Denton was doing the same thing other cities were doing. There might be a need to look at roles and responsibilities and types of employees to recruit. He did not want to think that Denton could only compare itself to other governments and should be able to compare to the private sector as well. Mayor Watts suggested keeping the consultant fees down as the amount budgeted for would be the amount of the fee suggested from the consultant. Springer stated only the revenue passed in the budget could be spent. If the fees were more, staff would have to come back to Council for the approval. City of Denton City Council Minutes September 1, 2015 Page 4 Mayor Watts questioned how many years the study would incorporate. City Manager Campbell stated that the study should be good for 5 -7 years unless there was an erosion of the workforce Consensus of the Council was to keep the amount in the budget as shown. 44 — Website Redesign supplemental package Council Member Johnson felt that the amount requested was too large for website design. He indicated that not everything had to be done at one time. His suggestion was to budget $100,000 for a redesign and see if it could be done for that. Staff could come back later for an adjustment. He didn't want to start eliminating items if something could be done for less. Council Member Hawkins asked for a breakdown of costs for the redesign. Alison Ream, Administrative Services Manager, stated that the item involved more than redeveloping a new website with additional functionality. It also included customer relationship management for self - service for services, making more of a customer relation experience. It also involved migrating the old pages to the new site and redesigning. Staff had looked at similar cities for a scope of services and also discussed with vendors for costs. Council Member Hawkins asked about using the existing website and updating parts of it. Ream stated that staff had asked the current vendor for a proposal for what they wanted to do. The initial proposal was over $100,000 with no customer interaction. Council Member Wazny stated that she liked Council Member Johnson's suggestion as it was a common sense approach to an investment. She understood wanting to redo the website but comparing Denton to Arlington was not the same as Arlington was more than twice the size of Denton. Council Member Roden stated that it sounded like a lot of money but the project was very comprehensive. He was in favor of doing it right from the start. Mayor Pro Tem Gregory stated that he was interested in building a website that did not pattern after other cities. He felt the current site was difficult to search. 45 — Funding for additional veterinary technician contract services. Council Member Wazny asked Chief Howell to comment on this funding. Chief Howell stated that two full time staff members had been added in anticipation of the new shelter. After opening, the shelter had twice as many animals than anticipated. He submitted for new positions and also knew there would be a need for additional vet services. He felt an additional vet tech for five days per week would be beneficial for the operation of the shelter. Council Member Wazny felt the position was important to add to the shelter. City of Denton City Council Minutes September 1, 2015 Page 5 Mayor Watts asked if the salary amount was based on an amount from the contractor. Howell stated it was an estimate from the current contractor. Mayor Pro Tem Gregory stated that the Informal Staff Report had indicated there were three options and he questioned Howell which one he would recommend. Howell stated that his recommendation was an additional day with the vet as well. Currently the vet had three full days per week but he recommended an additional day for the vet. Mayor Watts stated that currently was not in the budget. City Manager Campbell replied correct. Mayor Watts suggested setting this issue aside for now and see where it might come up at the end of the process. It was hard to commit to it right now. Council Member Briggs stated that she was in favor of the funding. Council Member Johnson stated that as Council worked through the budget, they needed to think of priorities as they related to homeless people. He did not want to spend more on homeless animals than on homeless people. 46 — Professional Services for Planning Mayor Watts stated this item would be considered the same as what was done with other services in the budget. 47 — Parks Maintenance Supplemental Package Council Member Wazny stated that if Council was looking for money for the animal shelter, some of these funds could be used for that. Eliminate this new hire which was for the Downtown Square and have Parks adsorb the cost. City Manager Campbell stated that there were programs added over a period of time with no additional funding. Emerson Vorel, Director of Parks and Recreation, stated that the funding Council was seeing was less than half of what was requested. The funding was not solely for Hickory Street and the downtown area. They had the responsibility for the grounds of the new animal shelter but had no funding for the maintenance. As the City added little pieces of property to the inventory, there were no additional funds to maintain those. The request was really for pieces of time for a number of individuals to work all over the city. There were also newly planted new trees around the city which all needed maintenance and water plus irrigation parts for the watering cycle which was also part of the package. Council Member Roden stated that he was aware of the unfunded mandates and that the Parks Department actually asked for more than was put in the budget. City of Denton City Council Minutes September 1, 2015 Page 6 Council Member Johnson felt that the tree mitigation fund could be used for maintenance of the trees and that money from the TIF fund plus the tree mitigation fund could be used for this position. 48— City -wide facility study supplemental package Mayor Watts stated that he had reviewed the 2002 Facilities Space Study and would not be in favor of spending any more money on this type of a study until that data had been reviewed more carefully. Instead of spending money on a new study, he recommended studying the data in the 2002 study. Mayor Pro Tem Gregory agreed with that proposal. Consensus of the Council was not fund the study at this time. 49 — McKinney Street mid -block crossing Mayor Watts stated that he would be in favor of taking money from the Traffic Safety fund for this project as that was what it was for. Council Member Roden stated that the next item regarding bike racks also was related to parking and that the more alternatives provided, the better it was for citizens. He questioned if the bike rakes could also qualify under that same fund. Deputy Chief Scott Fletcher felt that would have to be researched if those funds could be used for that purpose. Mayor Watts felt that if the $90,000 for the mid -block crossing was being moved to the Traffic Safety fund, then Council should be able to find the dollars needed for the bike racks. Council was in agreement with that procedure. Council Member Johnson asked if those funds could be used for safety lighting for public parking facilities. Fletcher felt that if the funds were being used for pedestrian safety to move around in the area, the lighting should be applicable. However, the funding probably would not apply if it was just for making the area brighter. # 10 — Little "d" bike racks This item was discussed with 49. 411 — Fire Training Captain Robin Paulsgrove stated that this position was eliminated in 2010. There were State and federal regulations for training that had to be documented. This was currently being done with one training position. The Department was also required to document training and all the sustainability of the organization for ISO rating. Three years of documentation of the sustainability process was City of Denton City Council Minutes September 1, 2015 Page 7 needed. The ISO preparation needed to start now in addition to other programs. Currently the Department was redeploying these responsibilities to other personnel for the ISO preparation. Council Member Wazny felt that the funding for this position needed to be found as it was an important position. Mayor Watts stated that he struggled with adding this position without finding other funding. He questioned if this was a duty a certified fire fighter had to do. Paulsgrove stated that it did not have to be a certified fire fighter. Over time the sustainability of record keeping, which was an administrative function, had been lost. Mayor Watts stated that an administrative position rather than a certified fire fighter should be hired. Paulsgrove stated yes that it had to be that. City Manager Campbell stated that the position currently was not in the current budget recommendation. Consensus of Council was that the ISO administrative functions would be on the Chief and Deputy Chief this year but would be a priority in the next budget. Springer reviewed the changes made up to this point: (1) eliminate the facilities study, (2) increase the contract for the vet technician services, (3) add funding for the Little "d" bike racks and move the funding for the mid -block crossing to the Traffic Safety fund. A determination still needed to be made in regards to the Parks Maintenance position as currently it was fully funded in the General Fund. Mayor Watts stated that Council had prior discussions regarding a city -wide economic development fund. There was the Downtown Incentive Fund which was a separate fund. It had been suggested to fund that Downtown Incentive Fund at $80,000 and he felt it would be nice to put all of those funds into the new city -wide economic fund. He would also like to see some additional funds to up the total amount to $100,000 or $150,000. Council Member Roden felt that was a good suggestion and would be in favor of the $150,000 amount. Council reviewed the list of expenditures in terms of one -time or reoccurring expenses. The City Council convened in a Closed Meeting at 11:23 a.m. to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -827 Consultation with Attorneys -Under Government Code, Section 551.071. City of Denton City Council Minutes September 1, 2015 Page 8 Consultation with the City's attorneys regarding legal issues associated with the Work Session item above posted regarding the 2015 -16 Proposed Budget, Capital Improvement Program and Five -Year Financial Forecast 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. B. ID 15 -653 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 returned to the Open Session at 12 noon. Springer noted that suggested Council changes to the budget included (1) reduce the funding for the Community Event Enhancement to $103,000 from the General Fund and fund the remaining $150,000 from HOT funds, (2) leave the Kiwanis fireworks funding from the General Fund, and (3) fund South by Southwest Marketing from HOT funds at $22,430. City Manager Campbell stated that the funding for the facilities study had been eliminated and no funding in out years for the leases for moving people out of City Hall West. He suggested rolling those funds into the Fund Balance to be available if needed. Consensus of the Council was to roll additional money into the General Fund to be used as needed. With no further business, the meeting was adjourned at 12:20 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 1, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 1, 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 Tem Gregory, Council Member Wazny and Mayor Watts. ABSENT: None. Citizen Comments on Consent Agenda Items There were no citizen comments regarding Consent Agenda items. 2. Requests for clarification of agenda items listed on the agenda for September 1, 2015. City Manager Campbell suggested Council table Item 5B to the September 15th Council meeting. Council Member Wazny asked for an explanation of Consent Agenda Item K from DME. Phil Williams, General Manager -DME, stated this item would be discussed further in Closed Session. It was an agreement with TMPA for DME to assume some of the responsibilities to Garland. Denton would maintain the lines in Denton County. There would be no increase in cost to DME as the cost would be billed to TMPA. Council Member Hawkins asked about Consent Agenda Item I and felt was a lot of money. He questioned why the City did not have its own crane. Williams indicated that different sizes were needed for different jobs. This company had a variety of cranes to help with the different jobs. Council Member Roden stated that Consent Agenda Item J regarding the house project was a great story and asked DME to share it. Brian Daskam, Manager of Internal Affairs, stated that in December the Council approved a site for the Hickory Substation. There were five homes on the site. One resident did not want to move from his current home. By State law, he had rights to a relocation package, help moving, rent differentiation and ADA needs to a different home that would be decent, safe and sanitary. As staff looked at different places, they were discouraged how few were appropriate. DME owned a home at 1224 Bonnie Brae which was determined to be appropriate for relocation with renovations. The new resident would be the owner of the home by using relocation funds for the purchase. Mayor Pro Gregory stated that the renovations would not add any expenses to what would be spent to relocate him. Williams stated that funds would have been expended by the relocation rule. Something had to be done with the house and the money would have been spent anyways. City of Denton City Council Minutes September 1, 2015 Page 2 3. Work Session Reports A. ID 15 -745 Receive a report, hold a discussion and give staff direction relating to the Denton County Transportation Authority Passenger Amenities Program. Mark Nelson, Transportation Director, stated that questions had come up regarding transportation enhancements. Jim Cline, President of DCTA, was going to make a presentation regarding those enhancements. Jim Cline stated that his presentation would include background /update, how to improve the passenger experience and discussion/questions. It would center particularly on shelters and benches. He reviewed the background information on the establishment of DCTA whereby the City contracted services for rail and bus operations. Community enhancements — enhancements were done in the Southeast Denton area to enhance the trail in that area. They were in the process of performing a comprehensive bus service needs review to see if there was a different approach to improve service and efficiency. Sustained financial strength — DCTA had strong reserve funds and internal coverage with current year revenue exceeding current year expenditures. They had received clean audits and GFOA awards. Challenges /opportunities included positive train control, improved service within the existing service area, seeking opportunities for expansion without jeopardizing funding and service for financially participating member cities. Passenger amenities — DCTA had already installed some amenities in Denton. Previous efforts included Where's My Ride, Go Pass, schedule changes /updates, passenger information, hike /bike trail, bus benches and shelters. Twenty new shelters were installed in Denton in 2014. They were coordinating with the City for future locations and a process for improvements. Selection of next locations — currently there were 243 stop locations in Denton with a variety of site conditions, riders, and community interest. Site selection considerations included boardings, citizen/community input, site conditions such as right of way availability, accessibility, sidewalks, other infrastructure conflicts and available funds. Moving forward they were planning on installing amenities at seven locations in FY 2015. The locations would be submitted to the City to determine materials, the procedure to install and implementation. Mayor Pro Tem Gregory asked if the amenities would be the same at all seven locations. Cline stated that some were benches and some were shelters. All would have the same kind of pad. A higher boarding level might determine a shelter as opposed to a bench. Council Member Johnson stated if there were no amenities at a stop then there would be no requirement for ADA but if something were constructed, then it would have to be ADA compliant. He felt there was a lot of red tape to get these done. He questioned if the ADA issue was the reason for the delay in these projects. City of Denton City Council Minutes September 1, 2015 Page 3 Cline stated that the goal was to have the entire route accessible. ADA requirements were a need that had to be addressed. Council Member Wazny felt it was important to keep the project moving forward. She suggested a place on the City's website where citizens could recommend a shelter or bench. Cline stated that someone could also go through the DCTA website and get an answer in seven days. Mayor Watts indicated that Item C would be considered next. C. ID 15 -780 Receive a report, hold a discussion and provide staff direction on the use of the City facility located at 300 Woodrow Lane as a homeless shelter. John Cabrales, Assistant City Manager, stated that the Monsignor King Outreach Center had asked in December to use a location for an emergency shelter as they had to vacate their current location. The City had a facility not being used at the time and accommodated the request. Building Inspections and the Fire Marshal did an inspection of the facility with occupancy granted for specific areas and specific conditions for a specified amount of time. The Outreach Center was not able to get another location and asked to use the facility for summer months. They were advised that they could use the facility on a temporary basis but really needed to find an additional location. The Fire Marshal noted that the location was lacking some health safety issues as emergency lighting, people were preparing food with an open flame and a higher occupancy than anticipated. Staff indicated to the Outreach Center that they would have to work on the immediate needs and policies presented. Costs to bring the facility up to code was estimated to be above $130,000 which did not include ADA compliance, adding more restrooms, and waterproofing a portion of the building as it was located in a flood plain. As a result they would no longer be able to use the building after September 15tH Roy Metzler, Monsignor Outreach Center, presented Council with a packet of information that detailed the services they rendered to the homeless. They knew the building needed work but it was hard to do when they didn't have a definite answer if they could stay at the facility. If they could get a long term lease or possibly purchase the facility, they could at their own expense put in the fire alarm system. Getting a temporary certificate of occupancy would allow them to begin exploring ADA and FEMA requirements. If the facility were closed it would be hard for them to fund raise. A key question was whether the City was interested in helping the homeless. The current location was perfect as it was near the Salvation Army, the Police Department and Downtown. A question was the participation level of the City and if significant, the property would work. Council Member Roden asked where they were with their capital campaign. Metzler stated that previously they had netted $35,000 per year. Now they were having people giving them money to renovate. The difference with the animal shelter was that they had a place they could continue to occupy while raising funds for a new location. City of Denton City Council Minutes September 1, 2015 Page 4 Betty Kay with the Outreach Center stated they were the only program that took in people with problems. Metzler stated that the reality of finding the perfect scenario was not feasible. Council Member Johnson stated that there needed to be a differentiation between the facility being up to the standards of the International Building Code or bringing it up to be safe for people. He felt there could be a slow migration to get the improvements done. He was in favor of doing this and felt that the City should help with the funding. A long term lease should be structured with an option to purchase it. Council Member Briggs felt the location was good and was a good use of current building. Council Member Wazny stated that if a lease were done, there needed to be stepping stones for improvements with a timetable. Council Member Roden questioned if the Outreach Center had a suggested a term for a lease. Metzler stated that just the certainty that they would be able to use the facility for a long term would be a help. A longer lease would be better. Council Member Roden stated that the sprinkler system would be installed by the winter season. Metzler replied correct. Cabrales stated that a fire sprinkler system, fire alarm system, and water line tap were required. It was suggested to hire an architect to meet ADA compliance. Council Member Roden felt that there was a different city posture now with the request. Somehow the request was accommodated without all of these issues. Cabrales replied that the initial request was made in winter and the City tried to accommodate the request as it was only for a few evenings and a very temporary use of the facility. The inspectors were now involved as it appeared that this would be an ongoing use. Another entity would not be allowed to use the facility without the needed upgrades. Mayor Watts stated that it was his understand that the shelter lost its prior building on short notice. He felt that no one who was asking questions was trying to put up a road block or not wanting to make it happen. There was a need to be consistent but flexible. He restated that the request was to continue and make a more permanent shelter similar to the Salvation Army Metzler replied correct especially during the days to get people in touch with other agencies and services. They had always expressed an interest to stay there but had been told that no decision had been made on the building. Mayor Watts stated that before the building was occupied, the sprinkler and fire alarm systems would be functional and that it would also include the dog kennel area. City of Denton City Council Minutes September 1, 2015 Page 5 Metzler stated correct. He noted that the request was for a six month temporary Certificate of Occupancy would allow them to be open during the winter and to have more time for fundraising. Mayor Watts stated that he would like to keep the funding for the Homeless Coordinator position in order to leverage funds with other agencies. He was in favor of the concept with flexibility and provide a safe environment for the clientele. The most pressing issue was the fire safety issue. Laura Behrens, Fire Marshal, stated that when the issue came to them in February, it was an emergency situation with two weeks to vacate their current location. They did an inspection and made fire safety changes for that immediate need. In the summer it was more of a long term use and they did another inspection. They requested additional fire safety code requirements for a long term use that included carbon monoxide detector and exiting requirements. Existing challenges still exist that could be worked through such as the issue of the gates. The building exits lead to an enclosed locked area which was prohibited. Moving forward the two biggest issues were the fire suppression and fire alarm system. The use could fall under I (Institutional) or R (Residential). In terms of the Fire Code both were applicable from the old code to the new code. A majority of these facilities were classified as an "I" because of the transit nature with more long term facilities classified as "R ". An "I" occupancy triggered more stringent requirements. Mayor Watts stated that the Council direction was to proceed forward with the discussion of a potential lease and terms, the immediate scheduling of fire suppression and alarm and an inventory of outstanding issues to get them before the proper body and monitor a timeline to get them done. Council Member Roden suggested that part of the direction would be to provide a regular briefing to the Council on how the project was progressing. Council Member Johnson suggested that terms for a lease could include a term of 10 years at $1 a year, the City would not pay for any improvements with the Outreach Center paying for all improvements, and a 10 year renewal option for $2 per year. The City should establish who would have ownership to help with the details. City Manager Campbell suggested John Cabrales and Mark Nelson. Mayor Watts stated that he agreed with the concept of a lease but that there would also be other terms to work out. Council Member Hawkins and Briggs volunteered help with the process. B. ID 15 -763 Receive a report, hold a discussion, and give staff direction regarding possible financial incentives related to the Cole Ranch development. Bryan Langley, Assistant City Manager, stated that he would be updating Council about Cole Ranch. He noted that Ocie Vest was present for questions if needed. The details of the proposed development, location and components of the project were reviewed. Due to the high infrastructure costs the developer was seeking financial incentives. The developer had originally proposed a Public Improvement district (PID) which would provide for assessments charged to property owners in the District. A second proposal was a Tax Increment Reinvestment Zone (TIRZ) which City of Denton City Council Minutes September 1, 2015 Page 6 provided for incremental increase in tax revenues split between the City and the developer. Revenues from the PID assessment would be used to fund bonds to pay for infrastructure. The assessment was charged to property owners in the district. The TIRZ provided reimbursement to the developer for infrastructure costs. Staff had ongoing negotiations with the developer to address Council and staff concerns regarding the inclusion of a TIRZ for residential properties and the value of the public benefits. The developer provided a revised proposal that included a PID equivalent to $0.33 cents per $100 valuation but allowed to increase up to $0.40 due to the structure of the TIRZ to make up for the costs. The TIRZ would be only for commercial property. The developer was also asking for sales tax rebate agreements on a case by case basis. Staff recommended approval of both the PID and the TIRZ with the following conditions: (1) the PID would be limited to $0.40 per $100 valuation; (2) the TIRZ would be applicable only to commercial property with 40% contribution from full City of Denton tax rate limited to 20 years and no more than $33 million; (3) sale tax incentive agreements for commercial properties would be considered on a case -by -case basis depending on the project; (4) homes sales in Cole Ranch would contribute 0.5% of the sale proceeds to enhancement of schools; (5) developer would donate sites to the City related for public safety and elevate storage needs; (6) developer would be responsible for all maintenance costs associated with lakes in the development; and (7) DME would be the sole provider of electrical services to the Cole Ranch development with a site for a future substation reserved. Mayor Pro Tem Gregory stated that the TIRZ caused him some concern especially at the figure presented. He questioned what happened if the developer went away but the lake stayed. Langley stated that would have to be looked at in the development agreement. Mayor Pro Tem Gregory suggested setting set aside money in the PID for operation and maintenance of the lakes. Council Member Wazny stated that having DME as the sole provider was financially advantageous for them but the Public Utilities Commission set the territories and there were other providers in the area. She was more comfortable removing that condition and let the territories set where they were. Langley stated that this particular area of Cole Ranch was only served by Co -Serve which would not provide service there. In areas where were there were options, DME would provide the service. Phil Williams, General Manager -DME, stated that the development was at the edges of Denton's multi - certification area and in those areas where possible, DME would be the provider. Mayor Watts questioned whether commercial did not include multi - family for the TIRZ. Langley replied correct. Mayor Watts stated that he struggled with the TIRZ on commercial but a cap of $33 million he could not agree with. He was not comfortable with the staff recommendation on sales tax recommendation as it gave a perception that it would be done. He suggested looking into whether the County would be willing to participate as well as currently that was not included in the City of Denton City Council Minutes September 1, 2015 Page 7 agreement. He also struggled with the proposed 0.5% contribution to DISD just for schools in the development and would rather make it available for all schools in district. Council Member Wazny suggested having the DISD weigh in on what to do with those funds. Get all three developers together and get an overlay for water, sewer and roads for the entire area. Council Member Roden questioned if there was a way to take the TIRZ concept and make it like a sales tax concept. Langley stated that they would have to make some commitments up front with the TIRZ in order to get the needed capital. Mayor Pro Tem Gregory felt it was not the City's business in regards to the schools. Langley reviewed the next steps in the process which included continuing to work on a developer agreement to finalize terms and agreement, engage Jeff Moore to assist with the drafting of the agreement and presenting the final agreement to Council for consideration in the fall 2015. Ocie Vest, Stratford Development, presented information on the concept of the development. He noted that a hurtle for the development was the infrastructure and the cost of bringing that to the development. He felt the only way to do it was through a PID and a TIRZ. The TIRZ would be capped at the actual costs. Council discussed breaking the TIRZ into three areas instead of just one for future needs. It was also discussed to work out with the DISD and not the City the terms of funding for schools. The lakes, dams, and spillways were owned by the Federal government and the development would keep them up to high standards as they were amenities for the neighborhood. Mayor Watts recapped that Council direction was to move forward with the PID and TIRZ with the TIRZ only for commercial at a cap of $33 million. Council was also in agreement with the staff recommendation to divide it into phases. D. ID 15 -702 Receive a report, hold a discussion, and give staff direction regarding participation in What Works Cities, a Bloomberg Philanthropies initiative. Alison Ream, Administrative Services Manager, reviewed the mission of the program which was to elevate and accelerate cities' use of data and evidence to engage citizens, make government more effective, and improve people's lives. Resources provided included on- the - ground training, access to world -class expertise, peer knowledge network, and implementation of technical solutions. Areas of Focus were (1) performance measurement, (2) planning and development, (3) street maintenance and reconstruction, and (4) economic development. Next steps were to hold a workshop on September 4th and define the scope of engagement. Consensus of the Council was to proceed with the proposal. E. ID 15 -817 Receive a report, hold a discussion and give staff direction regarding a potential Economic Development Grant Agreement and a Commercial Lease Agreement with Rail City of Denton City Council Minutes September 1, 2015 Page 8 Yard Partners, LTD. for a co- working space that may be administered by the Dallas Entrepreneur Center to support entrepreneurship and innovation in Tax Increment Reinvestment Zone (TIRZ) Number One. Aimee Bissett, Director of Development Services, stated that the City was engaged in the process of developing new recruitment strategies and programs. One of those initiatives focused on the recruitment of hi -tech and emerging technology companies, and the support of entrepreneurship and innovation. This program initiative sought to (1) create knowledge- based, high - paying jobs, (2) gainfully employ college graduates in order to keep them living and working in Denton, (3) support entrepreneurship and innovation, (4) recruit, create and retain successful innovative businesses, (5) diversify and strengthen the tax base, (6) increase the average household income in Denton, (7) encourage infill development and redevelopment, (8) create substantial investment in Denton businesses, (9) develop a workforce that was agile, technologically advanced, and employable, and (10) foster technology solutions to address community -wide needs. The proposed Railyard downtown catalyst project addressed a number of goals of the Technology and Innovation Program and was located in the Tax Increment Reinvestment Zone (TIRZ) Number One, 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 involved a Commercial Lease Agreement with the Developer (Rail Yard Partners, LTD), a Chapter 380 Agreement including revenue from the Tax Increment Reinvestment Zone One (Downtown TIRZ) with the developer and a separate Agreement with the Dallas Entrepreneur Center (to be considered by Council at a future date). The parties and roles were (1) Rail Yard Partners, LTD - the Landlord and grant recipient of the Chapter 380 Agreement, (2) City of Denton — the tenant, and (3) Dallas Entrepreneur Center (DEC) - 501(c)3 organization which would be the subtenant and /or Program Manager. Rail Yard Partners, LTD. was 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 had 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. 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. Closed Meeting: A. ID 15 -615 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. Receive a briefing and information pertaining to certain competitive public power and financial issues regarding Texas Municipal Power Agency ( "TMPA ") on matters including, without limitation: present and future plant operations issues, plant and system expenses, maintenance issues, performance issues, financial issues, reliability issues, planning issues, and any related issues concerning the City's interest in, and its business relationship with the Texas Municipal Power Agency; and discuss, deliberate, and provide Staff with direction regarding such matters. City of Denton City Council Minutes September 1, 2015 Page 9 B. ID 15 -720 Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations regarding Real Property - Under Texas Government Code, Section 551.072. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the potential sale of real property interests owned by the City of Denton located in the G. Walker Survey, Abstract 1330, and Lot 1, Block 1, Lake Dallas Storage Addition, both in Denton County, Texas, and located generally south of F. M. Highway 426 (East McKinney Street) between Mayhill Road on the west and South Trinity Rd. on the east. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above as well as issues related to Atmos Pipeline - Texas Lake Dallas Natural Gas Storage Facility and its designation by Transportation Security Administration TSA as critical energy infrastructure impacted by Ordinance No. 2015 -233 where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. ( Atmos Lake Dallas Storage Facility). C. ID 15 -785 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] D. ID 15 -818 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 Orison Holdings and 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 City of Denton City Council Minutes September 1, 2015 Page 10 from Orison Holdings 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 -819] E. ID 15 -826 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, 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; 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. 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 A. ID 15 -149 Blood Cancer Awareness Month Mayor Watts presented the proclamation for Blood Cancer Awareness Month. B. ID 15 -719 Presentation by Phil Williams, DME General Manager, recognizing the outstanding accomplishments of Denton Municipal Electric's Lineman Rodeo Team at the 19th Annual Texas Lineman's Rodeo. City of Denton City Council Minutes September 1, 2015 Page 11 Phil Williams presented the accomplishments of the Denton Municipal Electric's Lineman Rodeo Team at the 19th annual Texas Lineman's Rodeo. C. ID 15 -741 LIVE UNITED Month Mayor Watts presented the proclamation for Live United Month. D. ID 15 -779 Denton Dolphins Mayor Watts presented the proclamation for Denton Dolphins 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. ID 15 -796 Sam O'Donnell regarding a petition for a skate park. Mr. O'Donnell stated that he wanted to bring awareness that a new and improved skate park was needed. He was appreciative of the current park but it was out of the way and becoming outdated. He requested a concrete park in a more accessible area. He had about 500 supporters on line and petition with 500 signatures from his store. 2. ID 15 -795 Roy Metzler representing the Monsignor King Outreach Center regarding an update and request for funds. Steve Murray stated their appreciation for the Council consideration for their needs and the needs of the homeless in Denton. 3. ID 15 -815 Claudette Fette regarding the Coordinator position for the homeless and associated homeless needs. Dr. Fette stated that she was advocating support for those who were homeless and those who were at risk of being homeless. In addition to the shelter that was going to be provided, she asked Council to extend the use of the shelter during the daytime. She also supported the Homeless Coalition's position for a Homeless Coordinator to coordinate the various resources throughout the community. C. Additional Citizen Reports 1. Timothy Swenson spoke in support of the Homeless Coalition and especially those with handicaps. 2. Leigh Duncan -Timm echoed support the handicapped homeless and the mentally ill who were handicapped. She had not been homeless herself but was very close at times. It was important to focus on peer to peer experiences to help others. There City of Denton City Council Minutes September 1, 2015 Page 12 needed to be a range of support available and not just for immediate needs. She asked the Council to consider support for the Coordinator for the Homeless to coordinate services in Denton. 3. Dylan Voisard spoke in support of a skate park that was mentioned earlier. Denton was an art community and felt that for his generation a skate park collaborated that art feeling. 4 Liz Emerson spoke in favor of the Monsignor King Outreach Center request for a shelter as it was very needed in Denton. There was a need for a day shelter especially for the disabled. There also was not shelter for families. These two functions would help with the wrap around services that were available. 4. CONSENT AGENDA Council Member Hawkins motioned, Mayor Pro Tem Gregory seconded to adopt the Consent Agenda and accompanying ordinances and resolutions. 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 ", Council Member Wazny "aye" and Mayor Watts "aye. Motion carried unanimously. Approved the noise exception request listed below. A. ID 15 -618 Consider a request for an exception to the Noise Ordinance for the purpose of the fifth annual Susan G. Komen North Texas Denton Race for the Cure at C.H. Collins Athletic Complex and Long Road, on Saturday, September 26, 2015, from 6:00 a.m. to 11:00 a.m. Amplified sound is needed for public announcements regarding race times and to play music during the event. The exception is specifically requested to increase sound levels from 70 to 75 decibels. Staff recommends approval. Approved the noise exception listed below. B. ID 15 -708 Consider a request for an exception to the Noise Ordinance for the purpose of the fundraiser, 2015 SunRay's Rodeo, Music and Arts Festival hosted by the Raylyn's Heart Foundation, to be held at the North Texas Fairgrounds October 3, 2015, from 3:00 p.m. to 12 midnight. The exception is specifically requested to increase sound levels from 70 to 75 decibels and for an extension of hours from 10 p.m. to midnight. Staff recommends approval. Resolution No. R2015 -022 C. ID 15 -709 Consider approval of a resolution allowing the Black Chamber of Commerce to be the sole participant allowed to sell alcoholic beverages at the Blues Festival on September 19 -20, 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. The Parks, Recreation and Beautification Board recommend approval with a vote of 5 -0. City of Denton City Council Minutes September 1, 2015 Page 13 Resolution No. R2015 -023 D. ID 15 -743 Consider approval of a resolution adopting a revised City of Denton Handbook for Boards, Commissions, and Council Committees; and declaring an effective date. Approved the tax refunds listed below. E. ID 15 -749 Consider approval of tax refunds for waiver of penalty and interest for Property Tax Accounts 651794DEN, 655073DEN, 650104DEN, 650792DEN, 655027DEN, 654998DEN, 651744DEN and 637181DEN. Ordinance No. 2015 -253 F. ID 15 -765 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 a Skytrak Model 10042 Telehandler for the City of Denton Electric Substations division; and providing an effective date (File 5917- awarded to Kirby -Smith Machinery, Inc. in the amount of $125,600). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -254 G. ID 15 -767 Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the reconstruction of Lillian Miller Parkway from the IH 35E frontage road to north of Teasley Lane; providing for the expenditure of funds therefor; and providing an effective date (Bid 5869- awarded to the lowest responsible bidder meeting specification, Jagoe- Public Company in the amount of $1,577,075.25). Ordinance No. 2015 -255 H. ID 15 -768 Consider adoption of an ordinance approving the expenditure of funds for the purchase of a Phosphax Phosphorous Control System for Real Time Metering of Phosphorous at the Pecan Creek Water Reclamation Plant including one (1) year maintenance and a three (3) year agreement for the purchase of parts, 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 5891- awarded to Hach Company in the three (3) year not -to- exceed amount of $335,947). The Public Utilities Board recommends approval (4 -0). Ordinance No. 2015 -256 L ID 15 -770 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for crane services for Denton Municipal Electric substation and transmission line projects (RFP 5875- awarded to Luckett Crane Service, LTD in the three (3) year not -to- exceed amount of $540,000). The Public Utilities Board recommends approval (7 -0). City of Denton City Council Minutes September 1, 2015 Page 14 Ordinance No. 2015 -257 J. ID 15 -773 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designees to expend funds in an amount not to exceed $142,500.00 for the renovation of residential property located at 1224 North Bonnie Brae St., in the City of Denton, Texas. The purpose of the project is to provide a decent, safe, and sanitary replacement residence for a legally disabled Denton citizen who will be displaced due to an existing City infrastructure expansion as required by law. Ordinance No. 2015 -258 K. ID 15 -775 Consider adoption of an ordinance authorizing the City Manager to execute an agreement or agreements by and between the City of Denton, Texas and the Texas Municipal Power Agency (TMPA), that provides for terms and conditions under which Denton Municipal Electric will be responsible for the operation and maintenance of all TMPA transmission assets located within Denton County, Texas, in substantial conformity with the attached exhibits; authorizing the expenditure of funds therefor; and providing an effective date. Ordinance No. 2015 -259 L. ID 15 -778 Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute on behalf of the City of Denton, a Fixed Base Operator Airport Lease Agreement between the City of Denton, Texas and BAM Denton Management Ventures, LLC; and, providing an effective date. The Council Airport Committee recommends approval (3 -0). Ordinance No. 2015 -260 M. ID 15 -782 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. Ordinance No. 2015 -261 N. ID 15 -783 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 -262 O. ID 15 -792 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the renovation of the City of Denton Civic Center Pool, located at 515 North Bell Street; providing for the expenditure of funds therefor; and providing an effective date (RFP 5867- awarded to JC Commercial, Inc. in the amount of $1,797,777). Resolution NO. R2015 -024 P. ID 15 -820 Consider approval of a resolution of the City of Denton, Texas approving the renaming of the Patterson - Appleton Center for the Visual Arts to the Patterson - Appleton Arts Center; and declaring an effective date. City of Denton City Council Minutes September 1, 2015 Page 15 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -787 Consider nominations /appointments to the City's Boards and Commissions: Health & Building Standards Commission; Human Services Advisory Committee; Parks, Recreation and Beautification Board; and Zoning Board of Adjustment. Willie Hudspeth, 623 Newton, Denton, 76205, stated that the positions were nominated by Council but he could not understand how those individuals were selected. He did not feel this was good fair government. A previous nomination to the Animal Shelter Advisory Board was not approved and he questioned that process. Mayor Pro Tem Gregory motioned, Council Member Hawkins seconded to approve the nominations as presented. 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 ", Council Member Wazny "aye" and Mayor Watts "aye ",. Motion carried unanimously. B. ID 15 -819 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, the Board of Directors of the Tax Increment Reinvestment Zone Number One, City of Denton, Texas, 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 and for which the Tax Increment Reinvestment Zone Number One Board recommends approval; providing authority for the City Manager to execute the agreements subject to final language approval by the City Attorney; and providing an effective date. A Speaker Card was submitted by Willie Hudspeth who felt there needed to be someone in the process who saw a different prospective and that person needed to discuss the ordinance in terms such as code enforcement. Mayor Pro Tem Gregory motioned, Council Member Hawkins seconded to postpone consideration to the September 15, 2015 Council meeting. 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 ", Council Member Wazny "aye" and Mayor Watts "aye ",. Motion carried unanimously. 6. PUBLIC HEARINGS Ordinance No, 2015 -265 A. Z15-0021 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing an amendment to a Detailed Plan for a single family development within a Planned Development 12 (PD -12) district zone on approximately 1.37 acres of property, generally located on the north side of Winston City of Denton City Council Minutes September 1, 2015 Page 16 Drive, approximately 139 feet northeast of the corner of Waterford Way and Winston Drive in the City of Denton, Denton County, Texas, providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. The Planning and Zoning Commission recommends approval (7 -0). The Mayor opened the public hearing Aimee Bissett, Director of Development Services, stated this was an amendment to a detailed plan to incorporate approximately 1.39 acres into the detailed plan. This was the companion piece with the boundary adjustment with the city of Corinth. She reviewed the future land use map, zoning map, considerations included in the boundary adjustment agreement, concept plan for cluster housing, the detailed plan and the Denton Plan 2030. The Planning and Zoning Commission recommended approval as well as staff. There were no speakers during the public hearing. The Mayor closed the public hearing. Council Member Briggs 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 ", Council Member Wazny "aye" and Mayor Watts "aye ". Motion carried unanimously. Resolution No. R2015 -025 B. ID 15 -776 Hold a public hearing and consider approval of a resolution for the proposed transmission route for construction, expansion, and use of electric power transmission lines, beginning at the Bonnie Brae Substation of Denton Municipal Electric and traversing along lines beginning from east of Bonnie Brae St., west of North Locust St., and terminating just south of Loop 288 at the North Lakes Substation, in the City of Denton, Denton County, Texas. The Mayor opened the public hearing Brent Heath, Executive Manager of Energy Delivery, presented the details of the proposal which was the Bonnie Brae North Lakes Transmission Line. He discussed the system map, constraints map and the location map. Route options were presented along with information on previous public involvement actions. He reviewed public comments from the public involvement meeting. The staff recommendation was to move forward with rebuilding the line long the blue route. The following individuals spoke during the public hearing: Joyce Poole, 3021 N. Bonnie Brae, Denton, 76207, indicated that she was speaking for four individuals. She presented information concerning the easement for the line. Council Member Wazny suggested the Council may want to consider postponement in order to look at the easement issue. City of Denton City Council Minutes September 1, 2015 Page 17 Willie Hudspeth, 623 Newton, Denton, 77205, spoke in opposition to the green route. Phil Baker, PO Box 336, Denton 76202, spoke for the property owner regarding the placement of the line. The Mayor closed the public hearing. Council Member Wazny suggested postponing consideration in order to perform an engineering study on the 15 foot of line for the easement. Council Member Roden stated that the pole would be a regulation pole 60 -75 feet from the street. Heath stated that there would be a 60 foot easement placed in the center of the easement 30 feet on center. Council discussed the location of the new poles and the associated easement. Council Member Johnson motioned, Council Member Roden seconded to approve the resolution. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", Mayor Watts "aye, Council Member Briggs "nay" and Council Member Wazny "nay ". Motion with a 5 -2 vote. C. ID 15 -694 Hold a public hearing and receive citizen input on the FY 2015 -16 Proposed Budget. The Mayor opened the public hearing. Chuck Springer, Director of Finance, stated that this public hearing was a requirement of the City Charter and State law. He presented the overall details of the budget. No one spoke during the public hearing. The Mayor closed the public hearing. No action was required on this item. D. ID 15 -695 Hold a second 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. Chuck Springer, Director of Finance, stated this was the second required public hearing according to State law. He reviewed the published tax rate which would be formally approved on September 15th. The Mayor opened the public hearing No one spoke during the public hearing City of Denton City Council Minutes September 1, 2015 Page 18 The Mayor closed the public hearing. No action was required on this item. 7. 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. ID 15 -790 Willie Hudspeth regarding City Hall. Mr. Hudspeth complained about having to stay until the end of the meeting to speak to the Council. He did not feel it was for the benefit of the citizens. He commented on a meeting he had with Council Member Gregory and the City Manager regarding his property. The meeting resulted in in a compromise in what he was doing on his property. 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 Mayor Pro Tem Gregory requested a report on the current skate park, possible cost for a new park, possible location on current city property and either a joined or separate facility for bikes. Mayor Pro Tem Gregory requested a Work Session discussion on a temporary committee to consider options for an Exposition Street event space for a community market and other potential users. Council Member Roden requested a discussion on the issue holding a Certificate of Appropriateness due to use of hardy board. Look at the process for code changes as it moved through the Historic Landmark Commission, through Planning and Zoning Commission and on to Council. City of Denton City Council Minutes September 1, 2015 Page 19 Council Member Briggs requested research and consideration of a Youth Advisory Board to the Council's boards and commissions. Mayor Watts requested information on whether there were any ordinances regarding drones in the City. 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 8:41 pm. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS City of Denton City Council Minutes September 15, 2015 Page 18 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). Ordinance No. 2015 -293 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). Ordinance No. 2015 -294 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). Ordinance No. 2015 -295 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). CITY OF DENTON CITY COUNCIL MINUTES October 5, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Monday, October 5, 2015 at 11:37 a.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Briggs, Mayor Pro Tern Gregory, Council Member Hawkins, Council Member Roden, Mayor Watts, and Council Member Wazny. ABSENT: Council Member Johnson. 1. Work Session Reports A.ID 15 -933 Receive a report, hold a discussion, and give staff direction regarding the community assessment study for the Public Art Master Plan. Assistant City Manager, Howard Martin, introduced Emerson Vorel, Director of Parks and Recreation. Vorel introduced Margaret Chalfant of Chalfant Consulting, who had been hired by the City to develop a Public Art Master Plan. Margaret Chalfant stated that funds were approved by Council a couple of years ago to commission the creation of a Public Art Master Plan. She reviewed the Public Art Policy. She stated that public art governed by the policy should be art that was visually or physically accessible to the public and that was acquired by, donated to, and approved by the City of Denton. Public art that was neither paid for with public funds, nor created through special conditions by approval of the City of Denton, was not governed by the policy. Chalfant reviewed the importance of public art and the history or the Public Art Committee. Chalfant stated that annually at least 2.4 % of the total Hotel Occupancy Tax (HOT) revenues would be allocated for public art projects. Capital Improvement Project funds could not be used from the Streets and Drainage bond sales for public art. Other funding options included tax abatements to developers that included publicly accessible art as a significant component of the development. Public and private funding sources could be pursued. Individuals, businesses and organizations could also be encouraged to make contributions. Current funds available included Public Art for Street Improvements — $30,000; Public Art for Public Safety — $325,000; Public Art for Parks — $180,000; and 2015 -2016 HOT Funds of $51,482. Chalfant stated that in March 2007, the first piece of public art was purchased. Currently the City of Denton had purchased 68 pieces of art. The City of Denton has accepted the donation of 11 pieces of art. The City's current collection was comprised of 82 new pieces located throughout the City. She reviewed some of the pieces and the location and price. Harmony was in South Lakes Park and valued at $27,900. The Legacy was at Denton Enterprise Airport and valued at $34,850. Historic Quakertown was at the Civic Center and valued at $13,600. Denton Depot was at Patterson - Appleton CVA and was valued at $19,500. Pops Carter was in Quakertown Park and valued at $30,000. Leap Frogs was in North Lakes Park. City of Denton City Council Minutes October 5, 2015 Page 2 Chalfant stated that the master plan for public art would be data driven. Meetings had been held with focus groups, stakeholders, civic organizations, Parks Foundation, Parks Board, CVB quarterly meetings and Public Art Committee meetings. A survey went online on September 1, 2015. As of today 1,000 people had taken the survey. It would run through November 30, 2015. These organizations had allowed use of their social media platforms: Keep Denton Beautiful, Downtown Denton, Greater Denton Arts Council, and Main Street. She stated that pieces under consideration were — Jesus Moroles, a privately owned fountain. Jesus Moroles studied at UNT met an untimely death in 2015. It was being considered for placement in Quakertown Park. The 9 -11 Firemen's Memorial was being considered for placement in front of Central Fire Station. This was made of beams from the World Trade Center and the Denton fireman's bell that was located at City Hall West. Also being considered was Solar Disc by Charles Williams in 1964. Chalfant stated that the following were some options for Council consideration. A full time cultural arts employee to manage the City's collection and future projects. A more user friendly website for the viewing of the public art collection, perhaps its own website that was connected to the City website. The URL could be on the City's Public Art page. A line item in the City budget for Public Art. An exemption for Public Art in the HOT Funds allocation to allow for encumbering funds. Council Member Wazny asked that staff take public art tour information into consideration when redesigning the website. Council Member Roden asked what type of information from the survey was going to be recommended to Council. Chalfant stated that based on responses to the survey there might be some policy recommendations presented to the Council. Chalfant stated that another consideration for Council would be to have some high schools paint murals on the overpasses. Another project was the benches by the bus stops and maybe having a group paint them. Roden asked if there could be a section in the master plan that defined the places within the city that could be a canvas for artwork, but that would not require City funding. Mayor Pro Tem Gregory suggested pushing for public art place making in neighborhoods. Council Member Briggs suggested having an interactive map on the website that would show the public art pieces and where they were located on the map. Gregory stated that Darien Orr had done a comic book of Denton stuff — wouldn't it be fun to do a City Council coloring book of public art? Council Member Roden asked if public music had ever been discussed as public art. City of Denton City Council Minutes October 5, 2015 Page 3 Chalfant stated that public art was visual art. Watts asked when the final master plan would be available. Chalfant stated that it would be later in the fall. 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 that the Planning Department have a community meeting with citizens so they understand the changes to the gas well fees prior to having the item on the November 17 Council agenda. Council Member Wazny stated that she understood the Council would be briefed in Closed Meeting regarding the Larsen letter at the October 20 meeting and requested that if part of the discussion was not considered legal advice then that discussion be held during the open meeting. Mayor Watts requested a work session on a different process for the budget process. Council Member Hawkins felt that one more week could be given to the process. Council Member Wazny felt one extra week was not enough and stated that she would like to start the process in February. Council Member Briggs stated that tomorrow was National Night Out. With no further business, the meeting was adjourned at 12:32 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 6, 2015 Members of the City of Denton City Council participated in a press conference on Tuesday, October 6, 2015 at 10:00 a.m. at the Patterson - Appleton Arts Center, 400 E. Hickory Street, Denton, Texas. PRESENT: Mayor Pro Tem Gregory; Council Member Hawkins; Council Member Johnson; Council Member Roden; and Mayor Watts Phil Williams, General Manager -DME, opened the press conference and gave introductory remarks. Mayor Watts presented information regarding the Renewable Denton plan. He noted that the purpose of the press conference was to provide information to the public regarding plans and strategies for electric generation improvements and renewable energy options for Denton Municipal Electric to meet its future energy needs. Williams concluded the press conference and thanked everyone for attending. With no further business, the press conference was adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 13, 2015 After determining that a quorum was present, the City Council convened in a 2nd Tuesday Session on Tuesday, October 13, 2015 at 02:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Briggs, Mayor Pro Tem Gregory, Council Member Hawkins, Council Member Johnson, Council Member Roden, Mayor Watts, and Council Member Wazny. ABSENT: None. 1. Work Session Reports A. ID 15 -909 Receive a report, hold a discussion and provide staff direction relating to a proposal to design and develop a Community Event Center on City of Denton property located at 121 Exposition Street. Mark Nelson, Director of Transportation, stated that Denton Community Market had submitted a proposal outlining needed and desired enhancements to the two acre City parking lot at the corner of Exposition and East Hickory. He stated that the proposal included removal of existing pavement to establish green space, water and electrical services for vendors, lighting for security and evening events, shade structures, landscaping (trees), restroom facilities and sidewalk enhancements. Staff recommended that as part of the proposal to improve the 121 Exposition site, the existing pavement be removed and pavement for a minimum of 80 parking spaces be constructed. Nelson stated that a preliminary budget estimate of $253,000 had been included as part of FY 2015 -16 budget to facilitate non - parking lot enhancements. An additional $405,000 had been identified to facilitate the demolition and reconstruction of approximately one acre of pavement. Nelson presented two overlays of the site — one with a pavilion area, a stage, visitor restroom and wash area, addition parking and greenspace. The other overlay was a different orientation of the same overlay of the site. Mayor Pro Tem Gregory asked who owned the area with the greenspace. Nelson stated that Austin Baker owned that property. Nelson showed some photos of how the site was currently being used from different views. Nelson stated that the next steps included — direction on the formal design process; finalizing lease negotiations with Denton Community Market; construction elements — design RFP or in house, demo and reconstruct parking lot, utilities, sidewalks, lighting, shade structures, green space /landscaping; and access to the Austin Baker property. Council Member Johnson asked if we were going to make some improvements had there been any discussion as to what lease terms would look like. Nelson stated that staff had initiated some discussions. City ol'I)enton City Council Minutes October 13, 2015 Pic 5 Mayor Pro Tem Gregory asked if staff had had any other discussions about using the site for other events. Nelson stated that Economic Development had initiated some conversations. Council Member Roden asked if there was any update to the suggestion for a committee to look at design, sustainability goals, and business /entrepreneurship goals. Aimee Bissett, Director of Development Services, stated that there had not been any movement on that yet but there was still the intent to go that direction. Gregory asked if there were any policies regarding naming opportunities. Burgess stated that the City had a naming policy and could provide a copy to the Council. Council Member Hawkins asked if the next steps included putting the committee together and sticking to the timeline. Bissett stated that there was an opportunity for long range planning and neighborhood planning and economic development to work hand in hand to create a small area plan that was consistent with the Denton Plan 2030 but also incorporated a lot of the economic development effort into it. Nelson stated that the direction of Council included forming a committee, no funding be spent until a lease agreement was finalized, reaching out to the music community as well as Southeast Denton community in terms of design requests, looking at sponsorship opportunities as well as the naming policy, provide some feedback on the lighting costs, if making additional investments look into some grants. Roden also suggested some kind of policy discussion related to downtown festivals. Gregory asked about the components of the committee. Watts stated that it should be an ad hoc committee consisting of three council members. City Attorney Burgess stated that they could bring a resolution creating the ad hoc committee and assigning it duties and bring that back to Council at another meeting. B. ID 15 -955 Receive a report from staff on Prioritization of Street Reconstruction Projects. Tim Fisher, Division Manager of Water, stated that the pavement management system included three comprehensive pavement condition surveys performed in 2003, 2009 and 2015. A work order and pavement management software system was used to track asset conditions and costs and modeled future conditions and performed financial impacts. Street conditions were declining rapidly due to underfunding of street maintenance. City ol'Denton City Council Minutes October 13, 2015 Nge 5 Fisher stated that a pavement management system was a set of tools or methods that assisted decision makers in finding optimum strategies for providing and maintaining pavements in a serviceable condition over a given period of time. He stated that the past three bond programs used the pavement management system database and pavement surveys to develop the street reconstruction capital improvements plans. The bond programs included — 2005 — $9.6 million for street reconstruction, 2012 — $20.0 million for streets only bond program; and 2014 — $24 million for street reconstruction. The City Council appointed a citizen advisory committee. Staff initially proposed a street reconstruction capital improvement plan to the citizen advisory committee. The citizen advisory committee reviewed, modified and approved the proposed CIP plan. The Planning and Zoning Commission reviewed and approved the proposed CIP Plan. A voter election approved or rejected the bond sale and program. City Council appointed a bond oversight committee to advise the City Council during the implementation of the bond program. Changes to the Bond Program were determined by City Council after recommendation from the Bond Oversight Committee. Fisher reviewed the 2005 bond program. He stated that staff used a "worst first" approach based upon lowest OCI scores. They considered distributing the project across the city and avoiding small short projects that lacked continuity. There was limited staff experience with the pavement management system and limited and unknown level of funds available. For the 2012 bond program, there was more staff experience with the pavement management system. The second pavement survey and report was available with significantly improved analysis and report documentation available. The bond sale funding level was known and the bond advisory committee's focus was on street reconstruction. Staff had more time to plan and prepare a draft CIP project list. Information that was factored into the decision making process included: street classification, for example, arterial, collector, and residential — higher priority given to arterials and collectors; water and wastewater utilities replacement CIP projects within the 5 -year CIP plans — higher priority given to streets with water and /or wastewater projects; funded drainage CIP projects or identified but unfunded drainage CIP project information; water and wastewater utility condition information from the utility work order management system — higher priority given to streets with no utility concerns; traffic volume considerations; anticipated development activity; City Council district location; and bike lane plan information. The 2012 Bond Program was a streets only bond package — $20 million over five years at $4 million per year. The program funded 208 street segments (about 20% of streets with OCI less than 40) and 35% of segments were arterials and collectors. Seventy street segments had been completed; seven other segments were in progress. They were slightly behind schedule, costs were tracking below budget. Council Member Johnson suggested that it would be helpful if there was some sort of update on bond projects on the website. Council Member Hawkins stated that it would also help people understand what had happened with the previous bond program money before they were asked to vote on another bond program. October 13, 2015 Nge y Fisher reviewed the 2014 bond program - $98 million program over six years. $24 million for street reconstruction. Funding levels were raised to $6.0 million per year beginning in bond year 2015. 195 street segments were funded (28% of unfunded streets segments with OCIs greater than 40). 56% of segments were arterials and collectors. Four street segments were completed. Fisher presented an overview of the Street Department's operations and maintenance budget which funded the street maintenance program implementation. Funds were split about 60/40 between OCI and Non -OCI activities. Staff also used the pavement management system database to identify annual O &M budget funded street maintenance projects as well. One of the big challenges was coordination with utilities. A higher priority was given to streets used by more citizens (collectors over residential streets). Collector streets were identified as the classification of streets with the greatest proportion of low OCI ratings. Arterial costs were much higher due to many factors (depth of pavement, number of lanes, traffic detours, etc.). Council Member Wazny asked that staff come up with a list for next 12 or 24 months so that the Council could weigh in on some of the arterial and collector streets. Hawkins asked how is the street construction project report was prepared. Fisher stated that it included streets that were going to be closed for a variety of reasons. Watts asked if there were some modification we could do to change the priority for some higher profile streets. Gregory stated that he would like to see the higher traffic streets moved up. Assistant City Manager Howard Martin stated that staff would look at the communication tool on the website for the street bond programs. Roden stated that he would like to see Hickory, Oak, Eagle, and the connection from TWU to Bell accelerated. Council Member Briggs stated that she would like to see McKinney to Ryan High School and Bolivar accelerated. Following the completion of the 2nd Tuesday Session, the City Council convened in a Special Called Meeting of the City of Denton City Council to consider the following items: 1. Consent Agenda Mayor Pro Tem Gregory motioned, Council Member Hawkins seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll call vote, Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", Council Member Hawkins "aye ", Council Member Johnson "aye ", Council Member Roden "aye ", Mayor Watts "aye ", and Council Member Wazny "aye ". Motion carried unanimously. City ol'f)enton City Council Minutes October 13, 2015 Paige 5 Resolution No. R2015 -032 A. ID 15 -892 Consider approval of a resolution nominating members to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. Resolution No. R2015 -033 B. ID 15 -950 Consider approval of a resolution allowing Denton Rugby Football Club, Inc., to be the sole participant allowed to sell alcoholic beverages at Friends With Benefits Presents: North Texas Hot Shots, on October 17, 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. Approved the noise exception request listed below. C. ID 15 -951 Consider a request for an exception to the Noise Ordinance for the purpose of the third annual Friends With Benefits Presents: North Texas Hot Shots at the E. McKinney and E. Oak Street parking lot on Saturday, October 17, 2015, from noon to 6 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels for amplified sound. Approved the noise exception request listed below. D. ID 15 -960 Consider a request for an exception to the Noise Ordinance for the purpose of the third annual Industrial Street Pop Festival on the 100 block of Industrial Street, on Sunday, October 18, 2015 from noon to 10 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels. 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 Hawkins stated that since DME's big announcement he has received requests from citizens on how DME rates compared to other competitors. He was working with DME to get that information to the public. City ol'I)enton City Council Minutes October 13, 2015 PSI c 6 Council Member Wazny stated that she understood the Council would be briefed in Closed Meeting regarding the Larsen letter at the October 20 meeting and requested that if part of the discussion was not considered legal advice then that discussion be held during the open meeting. Council Member Wazny requested that the Planning Department have a community meeting with citizens so they understand the changes to the gas well fees prior to having the item on the November 17 Council agenda. City Attorney Burgess stated that they might need to do a work session item on November 17th and possibly have the public meeting after that. Council Member Roden stated that citizens in Southeast Denton had legitimate concerns about the new event center site and where did that sort of new development end as it was at the entry of an already established neighborhood. He wanted to know what were tools from a planning perspective to make sure that the entertainment/business district stopped at a certain point and the neighborhood began. Mayor Watts stated that he had received notice that the Denton Animal Support Foundation had donated $25,000 to the Linda McNatt Adoption Center. Following the completion of the Special Called Meeting, the City Council convened in a Closed Meeting at 4:47 p.m. to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -926 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] B. ID 15 -978 Consultation with Attorneys -Under Texas Government Code §551.071. Consult with the City's Attorneys on the status, strategy, and potential resolution of litigation styled, Bishop v. City of Denton, Texas and Darius M. Porter, Cause No. 4:14 -CV -608, currently pending in the US District Court for the Eastern District of Texas, Sherman Division. C. ID 15 -1014 Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding economic development issues regarding a proposed economic development incentive October 13, 201 Pic 5 agreement for Project Cartoon. This discussion shall include commercial and financial information the City Council has received from Project Cartoon, a business prospect, 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; deliberate the offer of a financial or other incentive to Project Cartoon. With no further business, the meeting was adjourned at 6:32 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 20, 2015 After determining that a quorum was present, the City Council convened in a Closed Meeting on Tuesday, October 20, 2015 at 12:00 p.m. in the Council Work Session Room. 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. A. ID 15 -1030 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's Attorneys regarding legal issues associated with the disclosure of confidential information, including those raised by legal counsel for the Freedom of Information Foundation of Texas in a letter dated August 27, 2015, by City Council members, by members of City boards and commissions and by City employees, including but not limited to, Constitutional limitations and criminal penalties, where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Following completion of the Closed Meeting at 1:15 p.m., the City Council convened in a Work Session. 1. Citizen Comments on Consent Agenda Items Cody Bettis, Docunav Solutions, spoke regarding the Laserfiche awarding of a contract. 2. Requests for clarification of agenda items listed on the agenda for October 20, 2015. Council Member Wazny asked for clarification on the Laserfiche bid proposal. Elton Brock, Purchasing Manager, stated that the process used was a legal process. The first Request for Proposal only had one bid that was responsive to prescribed requirements. The other vendor to the Request for Proposal contacted them to see if the City was getting the best value as the comparison pricing was lower. Melissa Kraft, Chief Technology Officer, stated that at one time Docunav was the sole source for this technology. The City was transitioning from customized tools to standard tools of which part could be done internally instead of doing out -of- house. Mayor Pro Tern Gregory questioned if staff was satisfied that the price comparison sheet was comparing apples to apples. Kraft presented information on the bid process. Council Member Roden stated that he was uncomfortable with vendors coming to request new bids and was ok with leaving it on Consent. City of Denton City Council Minutes October 20, 2015 Page 2 Mayor Pro Tem Gregory asked for an explanation of Consent Agenda I in terms of savings by doing the work in -house rather than contracting it out. Frank Payne, City Engineer, stated that staff looked at the bids which were higher than anticipated and decided that they could do it much lower in- house. Mayor Pro Tem Gregory stated that the Public Utilities Board had questioned if doing the project in -house would require the realigning of other projects that were already in progress. Howard Martin, Assistant City Manager, stated that fitting the project in was possible. The issue was to finish a project already started and then do this project. If it were contracted out, both projects could be done at the same time. Mayor asked if there was a way to track the costs internally at the end of project to see how close to budget it was. Martin stated that they could track all the costs internally and could bring costs back to Council once completed. Council Member Hawkins asked about Consent Agenda Item A. Chuck Springer, Director of Finance, stated that the item would allow the work to begin and when the bond sale was done in the summer the funds could be reimbursed instead of having to wait until the bonds were sold. Council Member Briggs questioned what type of vehicles were included in Consent Agenda Item C. Terry Kader, Fleet Manager, stated that the ordinance was a revision of the 2005 policy and covered alternative vehicles and alternative fuels. Council Member Brigg asked if the police vehicles in Consent Agenda Item O were included in the clean emissions. Kader stated that the sale was through a specific vendor and would look at the most efficient vehicle for the use. Council Member Wazny asked about moving Public Hearing C ahead of the other public hearings After discussion, Council consensus was that the first two public hearings should not take a long time and to keep the order as noted on the agenda. Council Member Johnson asked about Consent Agenda Items X and Z in terms of the process used to determine whether an organization could use public property or not and who made the decision. City of Denton City Council Minutes October 20, 2015 Page 3 John Cabrales, Assistant City Manager, stated that that the type of event determined which city department handled the request. A request would go through the Special Events Coordinator if it was to be held in a park. If the event were to be held in Williams Trade Square, it would go through Economic Development. He reviewed the various processes for approval such as what information would be needed for a street closure, permits for food trucks, public safety and emergency response plans, and cooking requests through the Fire Marshal's office. The timing of an event was also a consideration plus whether there were merchants who did not want a street closed. Council Member Johnson asked if a request would be approved if it met all the requirements of the application specifically closing a street and using public parking. He suggested thinking about forming a committee to make decisions whether or not to allow a certain event even if it meet all requirements of the process. Think about a different decision making process to allow city property to be used. City Manager Campbell stated that the topic was scheduled for a future Work Session. Mayor Pro Tem Gregory questioned if part of the current decision making process involved a limit on how close the events could happen to one another. Cabrales stated that the number of requests were not limited and that they were processed as the request came in. There had been discussions regarding high profile events happening at the same time as from a public safety prospective too many at the same time might spread resources too thin. Council Member Roden noted that the agenda backup indicated that there were only 46 attendees the last time this event was held and felt that might be a hardship on merchants to close streets for such a small number. He questioned if there was anything in the process to move the event somewhere else in the City rather than a small event that might be a hardship on many businesses and if there was any flexibility to go back and look at other options. Aimee Bissett, Director of Development Services, stated that staff had already looked at multiple options for the event. The parks were full and other venues had impact on neighborhoods. As part of the process Economic Development would work to customize the impact of these festivals. One requirement was a site plan on how to provide for safety. The event currently had 15 bands booked at this point in time. There was the possibility of doing a smaller footprint and not take up as many parking spaces. Council Member Roden questioned if Consent Agenda Item B differentiated from weekdays versus weekends for noise variations. Cabrales stated that the noise ordinance did differentiate between weekend and weekday. There may be a need to revisit whether to change the provisions of the current noise ordinance City Attorney Burgess stated that a substitute ordinance had been handed out for Consent Agenda Item J and any motion for that ordinance should note that substitution. Mayor Watts requested that Consent Agenda Item Q be pulled for individual consideration. City of Denton City Council Minutes October 20, 2015 Page 4 Work Session Reports A. ID 15 -1039 Hold a discussion and give staff direction concerning legal issues raised by legal counsel for the Freedom of Information Foundation of Texas in a letter dated August 27, 2015, in connection with the release of confidential information by City Council members, by members of City boards and commissions and by City employees. Council Member Wazny requested that the Council recognize David Zoltner who would like to speak on this item. Consensus of the Council was to allow Dr. Zoltner to speak. Dr. Zoltner spoke regarding the number of Closed Sessions and how they seemed to have increased. He requested that Council do less Closed Meetings. City Attorney Burgess stated that she had briefed Council in Closed Session regarding the issue plus it was posted for discussion by Council. Council Member Wazny reviewed the provisions of Council Rules of Procedure Section 2 -30 regarding discussion of Closed Meeting items. She felt the City did fine without the ordinance before it was approved. She would like to promote two different choices; either repeal the current ordinance and incorporate concerns into a new ethics ordinance that was being considered by the Council Ethics Committee or modify it so that it was more conducive to local government transparency. State law already had protection on the books for protection for confidential information. Mayor Pro Tem Gregory felt that there was a need to look carefully at the current ordinance as there appeared to be some aspects of the current ordinance were too onerous. The ordinance originated from the Council Ethics Committee in 2006. The purpose was to protect the interest of the City as an organization as there was certain information that Council did not want to disclose such as real estate transactions and negotiations. He felt there was no need for criminal penalties for processes that were already on the State books and that there would be no harm at this point to repeal it. He questioned if someone violated this rule as was currently in place, how would that be addressed. City Attorney Burgess stated that the ordinance contained a Class C misdemeanor which resided in the Municipal Court. A complaint would be filed with the prosecutor's office to initiate an investigation of the complaint. Council Member Briggs stated that she was in favor of Option One and work on non - criminal issues with the Ethics Committee. Council Member Roden stated that he was not sure direction had been given from Council to rewrite the ethics ordinance. He did not feel there would be harm at this point to keep it in place until a larger ethics policy /ordinance was written. Council Member Hawkins was in favor of a review. City Attorney Burgess stated that this was a complex issue depending on the federal and state laws already on the books. The State and Federal laws were not as broad as Denton already had. City of Denton City Council Minutes October 20, 2015 Page 5 Council Member Johnson stated that in some cases an item might need to be discussed in open session and in other cases, an item would be better discussed in Closed Session. He was in favor of an amendment to the current ordinance. City Manager Campbell stated that there might be a case with a real estate deal and if that information was shared with the public the seller might be harmed. There was a need to recognize a balance between the issues. He was not sure if there was a need to repeal the current ordinance or amend it. Council Member Briggs stated that she felt muzzled at times with the current ordinance and that there was a need for clarification on it in the future. Mayor Watts stated that he did not have a problem taking out the criminal provisions and put in some type of ethics ordinance. Council could bring forward items for public discussion if they felt it was necessary. Consensus of the Council was to consider options at a future discussion. Council Member Wazny stated that as Chair of the Ethics Committee, she would suggest sending the issue to the Ethics Committee to meet with Legal and then bring forward an ordinance to Council for consideration. The ordinance would contain a solution that met the concerns noted today. Mayor Watts stated that the overall direction of an ethics ordinance would need more time for discussion and he was not comfortable repealing the current ordinance with nothing else in place. Council Member Wazny felt that the 2006 ordinance came from the Ethics Committee, so logic stated that it go back to the Ethics Committee to be studied there. Council Member Roden preferred rather than the Ethics Committee that it be placed on an agenda for council vote. Consensus of Council send to the issue to the Ethics Committee for a future Council vote. B. ID 15 -958 Receive a report, hold a discussion, and give staff direction regarding potential changes to Chapter 23, Article VI of the Code of Ordinances as it relates to a change in police initiated towing and review and provide recommendation for the draft of Chapter 23 Article V of the Code of Ordinances relating to non - consent towing. Lt. David Mays, Denton Police Department, reviewed the initial problem with non - consent towing. With no local regulations, a much larger fee would be charged and not all companies charged the same amount. Non - consent tows were not governed by the current ordinance. Non - consent towing and vehicle storage facilities were currently regulated by TDLR. In March Council asked for the formation of a task force to look into the addressing of non - consent towing. The provisions of the new ordinance were reviewed in terms of authority and duties of the Department, compliance, exclusion of governmental entities, exemptions, fees and prohibited charges. The provisions also City of Denton City Council Minutes October 20, 2015 Page 6 included photography requirement, license requirement, license terms and renewal, change in information or employment status, revocation or denial with insurance requirement, registration term and reapplication, state licensing requirement, equipment markings, notification of vehicle removal, towing restricted, service rates, towing fee schedule and a payment towing fee study. Requirements for a vehicle storage facility included removal to a designated facility, release of vehicles from storage or impoundment, denial, suspension and revocation of a license. The allowable fees were compared to Article 5, TDRL and Dallas. Also included was a Towing Bill of Rights to be posted at paying windows and at large private parking lot facilities. Pat Smith, member of the Task Force, stated that there needed to be a public education process to understand what the fees meant and what they didn't mean. A key feature was for a vehicle storage facility in the City's ETJ which the towing companies had a problem getting approved. Consensus of the Council was to proceed with the ordinance. Mayor Pro Tem Gregory suggested sending the original wish list to Council when sending the Towing Bill of Rights. C. ID 15 -1002 Receive a report, hold a discussion, and give staff direction regarding creation of a fee ordinance governing permissible maximum fees associated with non - consent towing and the regulatory fees charged to tow companies by the City. This item was considered with Item B. D. ID 15 -989 Receive a report, hold a discussion, and provide staff direction regarding the City of Denton Solid Waste & Recycling Department proceeding with a proposed multi -year landfill mining capital project. This item was not considered. E. ID 15 -932 Receive a report and hold a discussion regarding various types of municipal debt, procedures for debt issuance, refundings and associated matters. Chuck Springer, Director of Finance, stated that the Audit Finance Committee requested this item come to Council on how bonds worked. Laura Alexander, First Southwest, presented information on when municipal bonds were used and the need to have specific authorization to sell debt. She reviewed General Obligation bonds which required an election and were sold by ordinance. Certificates of Obligation required a Notice of Intent to be published in newspaper before authorization. Certificates of Obligation were subject to referendum by petition for election. Contractual Obligations were used only for the acquisition of personal property. Anticipation Notes required no voter authorization or notice and could only have a maximum maturity of seven years. Revenue Bonds were secured and paid solely from certain revenues such as water, sewer and electric revenues, hotel/motel tax revenue, TIRZ revenues. Other resources available to the City included a financial advisor - First Southwest, Bond Counsel — McCall Parkhurst and Horton, an underwriter, a paying agent, a rating agency, City of Denton City Council Minutes October 20, 2015 Page 7 and an insurance provider. The City's bond ratings were AA+ and she detailed the rating factors. Bond pricing was reviewed as well as how the money flowed. F. ID 15 -1055 Receive a report, hold a discussion and give staff direction on options related to the possible sale of debt for Denton Municipal Electric power generation facilities. Chuck Springer, Director of Finance, reviewed the generation facility debt options. Revenue bonds pledged City utility system revenues, could capitalize interest during construction and one year after completion. They had higher interest rates than with a property tax pledge, no notice or election required prior to sale and no ability for the City to call a binding election under state law. Certificates of Obligation pledged property taxes and city utility system revenues, had lower interest rates, required publication of a Notice of Intent to issue, were subject to referendum by a petition signed by 5% or more of registered voters, and no ability for the City to call a binding election under state law unless a petition was received. General Obligation bonds pledged property taxes, had restriction on capitalized interest, had lower interest rates than Revenue Bonds due to the property tax pledge, required an election on a uniform election date with a simple majority of voters to approve the bond sale. City Manager Campbell noted that the homeless contract had been completed and staff would like to explain the differences between the new contract and one in the agenda packet. Consensus of the Council was to return to Item 2. 2. Requests for clarification of agenda items listed on the agenda for October 20, 2015. Council returned to Item 2 to discussion Consent Agenda Item S. John Cabrales, Assistant City Manager, presented proposed changes to the contract with Item S. The agreement would be a ten year lease through 2025 with an option to renew for 10 years. Under Section 1 the language was expanded to include services for homeless individuals, not just a shelter and included prohibited uses. Section 2 intended to have a $1 a year payment for 10 years. Section 6 dealt with alterations to the building. Page 8 contained wording for termination which would provide for 30 days as an opportunity to cure of any type of violation and if the violation could not be cured the agreement could be terminated with a 90 day notice. Section B indicated that if the City wanted to terminate without cause, 180 days written notice would be provided to vacate and also addressed compensation back to the investment made in the facility. Council Member Johnson suggested including language in terms of a default "as long as the tenant was diligently pursing a cure for the default ". Council Member Wazny questioned if the building would be under the City's insurance. Cabrales stated that the organization would have to take out insurance on the property themselves. City of Denton City Council Minutes October 20, 2015 Page 8 Mayor Watts questioned who would make the decision in terms of the termination provision. He would like it to be by the Council. City Attorney Burgess stated that the landlord was the Council unless the Council delegated to the City Manager so Council would terminate. Mayor Watts stated that he was uneasy with the termination by landlord for any reason. He understood there was a reimbursement clause but questioned what would be a cause for termination if there were no specifics listed. Council Member Wazny agreed that there needed to be specifics listed as Council's changed and in the future a new council might not want to continue with the contract. They needed more protection. Mayor Watts suggested adjusting the reimbursement for the first two years instead of 100% and increase the percentage of reimbursement. The third year would be 100% reimbursement. City Manager Campbell stated the intent was that if terminated within the first two years, the organization would get 100% of investment back. Council Member Hawkins agreed as he wanted them to feel like they had a home. The organization would be going through a lot of work. Larry Collister, Deputy City Attorney, stated that the City could not give a gift to them. Council Member Johnson said it would be a termination fee, not a gift. Mayor Watts stated that the City was prohibited by law to not give back more than the investment and questioned how that was not inconsistent with the rent for the facility. City Attorney Burgess stated that another possibility was to add language that the City would give the tenant two years without any termination for non - cause. It could be done for cause but not for non - cause. Then follow the reimbursement schedule. Council Member Johnson stated that it was difficult to raise money if there was no deal and worried about their ability to execute a plan with a termination option at any time. The organization could not do everything on the property in day one but the next round would take time. He felt the only item for non -cause would be for selling the property. He would suggest termination at any point after five years. Any point after five years could terminate and put in a termination fee such as 100 %. Put in an amount of money instead of a percentage as some of the work would be in -kind. Council Member Wazny felt that the City was either committed to the shelter or not. She did not have a problem with a five year minimum termination clause as the organization would be fundraising for the facility. Council Member Roden felt that the naming of the facility might be an issue and suggested putting some sort of naming rights into the agreement. That issue could be dealt with later if needed. He questioned if the organization had expressed an interest to purchase the property. City of Denton City Council Minutes October 20, 2015 Page 9 Cabrales said they had expressed an interest to purchase the property Collister stated that if sold, it would have to go out to bid. Council Member Johnson asked if they could have right of first refusal. City Attorney Burgess stated that it would have to go out to bid but that there were some exceptions to that which could be considered at a later date. Mayor Watts stated that he had spoken with Mr. Metzler about the lease and the organization wanted to get moving to get ready for the winter. It would help him that if the City sold the building the current lease would have to be honored. City Manager Campbell stated that he knew the organization was wanting to get on with the contract but suggested holding off until next week for approval to get all of the revisions completed. Consensus of the Council was to take another week for completion. Mayor Pro Tem Gregory expressed concern about provisions if housing individuals that were not safe or using facility in way that were not safe and how to correct those kinds of issues. Collister stated that the agreement was drafted as the City being the landlord and not involved in the homeless business. The City was leasing the space which separated liability with insurance. City Attorney Burgess stated that consideration for an amendment included a five year type of arrangement on termination, naming rights, and language about subsequent purchase of the property. Staff would refine the document and return back to Council for consideration next week. Mayor Watts suggested trying to contact Mr. Metzler before the regular meeting to provide feedback on the Council's suggestions 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 under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -1029 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 located along both the east and west sides of Bernard St. between Eagle Drive to the north and Collins Street to the south, in the City of Denton, Texas, if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations City of Denton City Council Minutes October 20, 2015 Page 10 with a third person. 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] [ID 15 -985] B. ID 15 -911 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) 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 A. ID 15 -939 Support Our Troops Mayor Watts presented the proclamation for Support Our Troops. B. ID 15 -1045 Fire Prevention Month Mayor Watts presented the proclamation for Fire Prevention Week. 3. PRESENTATION FROM MEMBERS OF THE PUBLIC City of Denton City Council Minutes October 20, 2015 Page 11 Mayor Watts suggested that the speakers scheduled for the end of the meeting be moved up to this portion of the agenda. Consensus of the Council was to move those speakers to the front of the agenda. A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public 1. ID 15 -907 Naomi Wood regarding paid parental leave for City of Denton employees: going beyond FMLA. Ms. Wood presented information regarding additional paid parental leave for city employees beyond FMLA. She noted that paid parental leave was good for working families and that FMLA needed to be expanded as it only guaranteed that an employee could not be terminated up to 12 weeks. It was not paid leave. She requested the Council expand the City's current policy for a paid leave policy for city employees. 2. ID 15 -931 Dawn Carlin regarding necessary improvements on McKinney between Loop 288 and Ryan High School. Ms. Carlin spoke regarding the need to expand and improve McKinney Street. Her daughter had been struck by a vehicle while walking to Ryan High School. This had been an ongoing concern for area parents since the school was built in 1996 as there was no safe path walking to and from the school. She urged Council to work with TxDOT and get the needed improvements done as soon as possible. 3. ID 15 -936 John Goodman regarding Quakertown Park. Mr. Goodman stated that he had looked for information in Quakertown Park regarding the movement of citizens from that area for the development of the park. He felt there needed to be more information in the City especially in the Courthouse Museum regarding African- American history. He also suggested putting additional information in more heavily traffic areas of the Park regarding the history of Quakertown Park. C. Additional Citizen Reports Tami Moral spoke regarding a zoning violation regarding the dogs next door to her. She had inaccurate police reports regarding the dogs next door and asked Council for help with her situation. The Council considered the Speakers from Agenda Item 7. 7. 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 2. ID 15 -1000 Alysia Jordan regarding water bills. City of Denton City Council Minutes October 20, 2015 Page 12 Ms. Jordan stated that her neighborhood had an increase in their water bills and had experienced drastic changes in their water usage. They had contacted the City but she felt their responses had not been satisfactory. Her neighborhood needed help with their bills and the apparent problems they were experiencing. 3. ID 15 -1048 Kerri Burnside regarding the Engineering Department concreting drainage ditches. Ms. Burnside suggested a better way to handle Engineering projects when they involved the concreting of drainage ditches. She encouraged the City to hold public meetings during the design phase of projects, provide regular updates on the progress of projects, and have respect for and adherence to the concepts outlined in the Denton 2030 plan. There should be some type of oversight/monitoring of the Engineering Department. She also felt there should be some type of mitigation by the City to those impacted by City projects. A citizen's board might be formed to judge the balance of these types of projects or use the current Planning and Zoning Commission. She noted that 43 trees were lost during this project and if a developer had done this, they would have had to replace the trees. 4. ID 15 -1050 Judy Smith regarding the City Engineering Department's transparency when handling drainage ditch related projects. Ms. Smith spoke regarding the Engineering Department handling a drainage ditch project behind her church. The beautiful land behind her church was changed into a concrete ditch with a chain link fence. The church did not have any warning about the change. They did not have any help with replanting of the trees and they had costs increased due to the loss of the trees. 5. ID 15 -1052 Gary Cook regarding engineering projects and the community. Mr. Cook requested a report from the Engineering Department of how this specific case was handled and a report showing Denton would provide transparency to keep the public informed of project design, impact and progress. He suggested embracing the Denton Plan 2030, especially as it pertained to keeping Denton green. The City needed to provide mitigation to those impacted by city projects. 4. CONSENT AGENDA Council Member Hawkins motioned, Council Member Roden seconded to adopt the Consent Agenda and accompanying ordinances and resolutions, approving the substitute ordinance for Item J and pulling Items Q and S for separate consideration. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins it Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -304 A. ID 15 -934 Consider adoption of an ordinance of the City of Denton, Texas to declare the intent to reimburse capital program expenditures of the Electric Utility ($57,850,000), Solid Waste ($9,280,000), and General Government ($27,980,000) City of Denton City Council Minutes October 20, 2015 Page 13 with Tax Preferred Obligations (Certificates of Obligation and General Obligation Bonds) with an aggregate maximum principal amount equal to $95,110,000; and providing an effective date. The Public Utilities Board considered the utility fund expenditures of this resolution and recommends approval (7 -0). Approved the noise exception listed below. B. ID 15 -949 Consider a request for an exception to the Noise Ordinance for the purpose of the Brave Denton - Brave Combo Fight the Frack event sponsored by the Blackland Prairie Rising Tide. Live music will be played in Quakertown Park, located at 321 E. McKinney Street, on Tuesday, November 3, 2015, from 7:00 p.m. to 9:30 p.m. An exception is specifically requested to increase sound levels from 70 to 75 decibels. Staff recommends approval. Ordinance No. 2015 -305 C. ID 15 -953 Consider adoption of an ordinance of the City Council of the City of Denton, Texas providing for the City's adoption of the Clean Fleet Vehicle Model Ordinance proposed by the Regional Transportation Council (RTC) which is the Regional Transportation Policy Body associated with the North Central Texas Council of Governments (NCTCOG); and providing an effective date. The Committee on the Environment recommends approval (3 -0). Ordinance No. 2015 -306 D. ID 15 -954 Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2013 -016 to prescribe updated titles and number of positions for certain classifications of Fire Department personnel; providing repealer, cumulative and severability clauses; and declaring an effective date. Ordinance No. 2015 -307 E. ID 15 -979 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the University of North Texas for internet services under Section 791.001 of the State of Texas Government Code; authorizing the expenditure of funds therefor; and declaring an effective date (File 4943 - Interlocal Agreement with University of North Texas System in the three (3) year not -to- exceed amount of $60,000). Ordinance No. 2015 -308 F. ID 15 -980 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 the City of Copperas Cove, Texas, to provide for the City of Denton purchase of a model year 2000 used Scarab Windrow Turner for the City Landfill; providing for the expenditure of funds therefor; providing a savings clause; providing an effective date (File 5894 in the amount of $30,000). The Public Utilities Board recommends approval (7 -0). City of Denton City Council Minutes October 20, 2015 Page 14 Ordinance No. 2015 -309 G. ID 15 -981 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) Bobcat Model T870 Skidsteer Loader for the City of Denton Solid Waste Department; and providing an effective date (File 5950- awarded to Bobcat Company in the amount of $74,243.17). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2 015 -3 10 H. ID 15 -982 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of Laserfiche Document Imaging Application upgrade to version 9.3 on the RIO Licensing Platform, software maintenance, additional licensing for Laserfiche Forms Package, and software enhancements as approved by the State of Texas Department of Information Resources (DIR) Contract Number DIR -SDD -2502; providing for the expenditure of funds therefor; and providing an effective date (File 5954- awarded to MCCi, LLC in the not -to- exceed amount of $305,000). Ordinance No. 2015 -311 L ID 15 -983 Consider adoption of an ordinance rejecting any and all competitive bids for the construction of the Santa Monica Water and Wastewater Improvements project for the City of Denton; and providing an effective date (Bid 5876). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -312 J. ID 15 -984 Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Country Club Mobile Home Park, Nettie Schultz Park, and Woodhaven Street Sanitary Sewer Replacements Project for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (Bid 5877- awarded to the lowest responsible bidder meeting specification, Dickerson Construction Company, in the amount of $1,002,073). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -313 K. ID 15 -986 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of two (2) Altec bucket trucks for Denton Municipal Electric which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code, such purchases are exempt from requirements of competitive bidding; and providing an effective date (File 5949- awarded to Altec Industries, Inc. in the not -to- exceed amount of $428,385.50). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -314 L. ID 15 -987 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the City of Denton City Council Minutes October 20, 2015 Page 15 acquisition of one (1) Frazer Type I Ambulance for the City of Denton Fire Department; and providing an effective date (File 5948- awarded to Frazer, Ltd. not - to- exceed amount of $151,425). Ordinance No. 2015 -315 M. ID 15 -990 Consider adoption of an ordinance approving the expenditure of funds for the purchase of two (2) WEMCO Hydrogritter 12" Weir End stainless steel grit separation systems for the Pecan Creek Water Reclamation Plant, 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 5941- awarded to Jay Martin Company in the not -to- exceed amount of $85,600). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -316 N. ID 15 -991 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for City of Denton utility bill printing and mailing services; providing for the expenditure of funds therefor; and providing an effective date (RFP 5815- awarded to Ancor Information Management LLC., dba Utilitec, in the three (3) year not -to- exceed amount of $1,300,000). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2015 -317 O. ID 15 -993 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Police Vehicles for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5855- awarded to James Wood Autopark in the three (3) year not -to- exceed amount of $1,469,716.08). Ordinance No. 2015 -318 P. ID 15 -994 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Performance Management, Compensation Management, and Learning Management Software including a three (3) year software maintenance agreement for the City of Denton Human Resources Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5827- awarded to Cornerstone OnDemand, Inc. in the not -to- exceed amount of $322,688.40.) Ordinance No. 2015 -320 R. ID 15 -997 Consider adoption of an ordinance of the City of Denton, Texas, amending 2004 -261; establishing fees to be charged for overdue books and materials for the libraries of the city of Denton, TX; to equalize said fees, update formats, and provide a uniform checkout length of time to all circulating materials; repealing all ordinances in conflict; provide a severability clause; provide for an effective date. City of Denton City Council Minutes October 20, 2015 Page 16 Ordinance No. 2015 -321 T. ID 15 -1003 Consider adoption of an ordinance closing, abandoning and vacating a portion of the right -of -way on Texas Street between the northwest corner of Lot 1, Block A, East College Addition, to the East, and the Union Pacific Railroad corridor, to the West, being a 0.641 acre tract: and providing an effective date. (Abandonment of Texas Street located within the main Service Center compound) Ordinance No. 2015 -322 U. ID 15 -1006 Consider adoption of an ordinance of the City of Denton, Texas prohibiting U -turns for any vehicle travelling northbound at the 800 Block of North Loop 288; providing a repealer clause, providing a savings clause; providing a penalty of a fine not to exceed two hundred dollars ($200) for violations of this ordinance; and providing for an effective date. The Traffic Safety Commission recommends approval (4 -0). Ordinance No. 2015 -323 V. ID 15 -1007 Consider adoption of an ordinance of the City of Denton, Texas prohibiting parking on the west side of Bryan Street from its intersection with West Oak Street to its intersection with Scripture Street; providing a repealer clause, providing a savings clause; providing a penalty not to exceed five hundred dollars ($500) for violations of this ordinance shall be governed by Chapter 18 of the code of ordinances of the City of Denton; and providing for an effective date. The Traffic Safety Commission recommends approval (4 -0). Ordinance No. 2015 -324 W. ID 15 -1018 Consider adoption of an ordinance approving a Commercial Operator Airport Lease Agreement between the City of Denton, Texas and Mark Hicks Transport, LLC; and providing an effective date. The Council Airport Committee recommends approval (3 -0). Approved the noise exception listed below. X. ID 15 -1019 Consider a request for an exception to the Noise Ordinance for the purpose of the Denton Day of the Dead Festival, to be held in the Williams Trade Square parking lot and on Industrial and E. Hickory Streets, October 24, 2015, from 11 a.m. to 9 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels. Resolution No. R2015 -034 Y. ID 15 -1021 Consider approval of a resolution allowing Wine Squared to be the sole participant allowed to sell alcoholic beverages at the Denton Day of the Dead Festival, on October 24, 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. City of Denton City Council Minutes October 20, 2015 Page 17 Approved the noise exception listed below. Z. ID 15 -1032 Consider a request for an exception to the Noise Ordinance for the purpose of the Goddesses of Light Music Festival, to be held in the Williams Trade Square parking lot, November 6 - 7, 2015, from Noon to 10 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels. Resolution No. R2015 -035 AA. ID 15 -1033 Consider approval of a resolution allowing Hannah's Off the Square to be the sole participant allowed to sell alcoholic beverages at the Goddesses of Light Music Festival, on November 6 - 7, 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. Item Q was considered. Ordinance No. 2015 -319 Q. ID 15 -996 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a lease agreement between the City of Denton (Keep Denton Beautiful) and Rail Yard Partners, LTD, and providing an effective date. The Public Utilities Board recommends approval 7 -0. Mayor Watts stated that he was surprised the lease was for prime Denton space and questioned the events for Keep Denton Beautiful (KDB) to move out of the Parks and Recreation building. Loren Barker, Keep Denton Beautiful Program Manager, stated that they had been working on this item since June of last year. Parks had other plans for building they were in and knew they had to look for other space. Based on that situation, the KBD Board decided to search for space. Mayor Watts questioned when Parks would be taking over the building. John Cabrales, Assistant City Manager, stated that Parks would need the building when they started to move forward with the new tennis center. Parks was also pressed for space at different facilities so there was a need for the space which could be used for Parks programming when KDB moved out. Barker stated that KDB had been looking for space on their own without much success and engaged a broker to help. They had Real Estate, Technology Services and Legal involved in looking at options for moving. Mayor Watts stated that it would be difficult for him to support this item as he was not comfortable with it being in prime downtown space. Council Member Roden stated that the organization currently occupied a City location and questioned how the rent structure was determined and where money was coming from. City of Denton City Council Minutes October 20, 2015 Page 18 Barker stated that the current contract agreement paid staff's salaries and the building space was from non - profit programs. When they were looking for space they had talked with Solid Waste regarding capacity for rent. Council Member Roden questioned what the proposed space would provide for KDB. Barker stated that this location was adjacent to an existing city facility for fiber services. It was also a good neighborhood area where there was a lot of innovation in the area. It was a central location and accessible for transportation and was accessible to the public. Council Member Johnson asked for a clarification on the incentive on the building as he was not a fan of another City department going into that building. Aimee Bissett, Director of Development Services, stated that this was an incubator program with the original concept having similar options for KDB. It was a unique opportunity rather than just lease space as it was a partnership in order to create a catalyst project. The approach was to buy down the lease rate and use TIF funds to supplement the lease. Staff had discussed whether this was an appropriate place for KDB to spark redevelopment which KDB had done for several years. Council Member Wazny felt this would be a long term anchor where other tenants might not be as long in the building. Mayor Watts stated that one of his concerns was that the developer was given $200,000 for the space and he did not understand the need for brokers when the City had a Real Estate Department. Bissett noted that the broker was engaged before they looked at this space. Council Member Roden 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 ", Council Member Wazny "aye" and Mayor Watts "nay ". Motion carried with a 6 -1 vote. S. ID 15 -998 Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or his designee, to execute on behalf of the City of Denton a lease of property between the City of Denton, Monsignor King Outreach Center in substantially the same form as attached hereto and incorporated herein by reference, for the operation of a homeless shelter at 300 Woodrow Lane; and providing for an effective date. Council Member Johnson motioned, Council Member Wazny seconded to table the item to a date certain of October 27, 2015. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "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 City of Denton City Council Minutes October 20, 2015 Page 19 A. ID 15 -952 Consider nominations /appointments to the City's Boards and Commissions: Parks, Recreation and Beautification Board; Public Art Committee; and Traffic Safety Commission. Council Member Briggs nominated George Neal to the Public Art Committee. Council Member Roden motioned, Council Member Wazny seconded to approve the nomination. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Resolution No. R2015 -036 B. ID 15 -966 Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to sign and submit an amendment to the 2013 and 2014 Action Plans for Housing and Community Development submitted in June 2013 and June 2014 to the U.S. Department of Housing and Urban Development; with appropriate certifications, as authorized and required by the Housing and Community Development Act of 1974, as amended, and the Affordable Housing Act of 1990, as amended; and providing for an effective date. The Community Development Advisory Committee recommended approval unanimously. Barbara Ross, Community Development Manager, presented information on Items B and C. Item B was an amendment to the 2013 and 2014 Action Plans. Both Action Plans included an allocation of HOME funding to the Denton Affordable Housing Corporation's (DAHC) Affordable Housing Opportunity Program (AHOP). Due to the delay in spending these funds on AHOP projects, DAHC was requesting that $42,000 in 2013 funding and $41,000 in 2014 funding be reallocated to the Bolivar Rental Rehabilitation project. DAHC recently purchased a six -plex at 2118 Bolivar Street and would like to use the HOME funding to renovate the property and provide affordable rental housing to low and moderate - income households. The Community Development staff was also requesting that the funds remaining in the AHOP, after the reallocation of funds to the Bolivar Rental project, be reallocated to the City's Home Improvement Program (HIP). This amendment would provide an additional $26,086 in funding for the HIP program and would ensure that all HOME funds were spent in a timely manner. Item C was an amendment to the agreement with Denton Affordable Housing for the funding. Council Member Roden motioned, Council Member Briggs seconded to approve the resolution. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "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 -325 C. ID 15 -972 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving the First Amendment to the 2014 -15 agreement between the City of Denton and the Denton Affordable Housing Corporation; authorizing the City Manager to execute the First Amendment and to expend funds with respect to City of Denton City Council Minutes October 20, 2015 Page 20 the First Amendment; and providing for an effective date. The Community Development Advisory Committee unanimously recommended approval. This item was considered with Item B. Council Member Roden motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye" and Council Member Wazny "aye ". Motion carried unanimously. Mayor Watts left the meeting with a conflict of interest. 6. PUBLIC HEARINGS Ordinance No. 2015 -326 A. S15-0008 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a Specific Use Permit (SUP) for a Drive - Through Facility in a Downtown Commercial General (DC -G) zoning district and use classification. The approximately .30 acre site is generally located on the east side of South Carroll Boulevard and approximately 130 feet south of Maple Street; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. (515 -0008) The Planning and Zoning Commission recommended approval of this request, subject to conditions (7 -0). The Mayor Pro Tem opened the public hearing. Aimee Bissett, Director of Development Services, stated that the proposal was for a remote ATM for Access Bank on Carroll Blvd. She reviewed the site data, zoning map, and comprehensive plan usage including the layout of the site plan. The proposed use was compatible with surrounding commercial and office development. However, there was an existing Single - Family Dwelling across Pacific Street directly in front of the proposed ATM's exit. As vehicles exit the ATM at night, their headlights would shine directly into that dwelling, possibly causing a nuisance. To mitigate this nuisance, Staff suggested reversing the traffic pattern so that vehicles would enter the site from Pacific Street and exit into the Access Bank parking area, which will require the ATM kiosk to be relocated to the east of the drive aisle. The applicant was not amenable to Staff s suggestion to reverse the traffic pattern and had provided a letter regarding the suggested change. The owner of the residence indicated that it was a rental unit and was scheduled for redevelopment as commercial property in the future. Staffs recommendation was for approval with conditions. The Planning and Zoning Commission recommended approval but did not recommend the reversal of the traffic pattern. Kelly Morgan, architect for the proposal, spoke in favor but not in favor of the reverse of the traffic pattern. The Mayor Pro Tem closed the public hearing. City of Denton City Council Minutes October 20, 2015 Page 21 Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance with the set of conditions as proposed by the Planning and Zoning Commission which did not include the change of the traffic pattern. 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. Mayor Watts returned to the meeting. Ordinance No. 2015 -327 B. Z15-0022A Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a change in the zoning classification from a Regional Center Commercial Downtown (RCC -D) zoning district and use classification to an Employment Center Industrial (EC -I) zoning district and use classification on approximately 1.5 acres of land generally located on the north side of Schuyler Street and approximately 450 feet west of I -35 in the City of Denton, Denton County, Texas; adopting an amendment to the City's official zoning map; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (Z15 -0022) The Planning and Zoning Commission recommended approval of this request (6 -0). The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, stated that this a rezoning from a Regional Center Commercial Downtown (RCC -D) zoning district to Employment Center Industrial (EC -I). She presented the background of the proposal, future land use map, zoning map, and considerations of the proposal. She also detailed the public notification of the proposal. The Planning and Zoning Commission recommended approval. Lee Allison, representing the developer, was available for questions or concerns. The Mayor closed public hearing. Council Member Johnson motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye" and Council Member Wazny "aye ". Motion carried unanimously. Resolution R2015 -037 C. ID 15 -985 Hold a public hearing and consider approval of a resolution by the City Council regarding four proposed sites for construction, expansion, and use of an electric power transmission /distribution substation located along both the east and west sides of Bernard St. between Eagle Drive to the north and Collins Street to the south, in the City of Denton, Texas, as part of Denton Municipal Electric's service territory. The Mayor opened the public hearing. City of Denton City Council Minutes October 20, 2015 Page 22 Phil Williams, General Manager of DME, presented the details of the proposal. He noted that Denton Municipal Electric (DME) had identified several projects within the DME system that were critical to maintaining reliability and allowing Denton to continue to grow. Construction of the Eagle Substation was one project that was necessary. The project would consist of construction of a new substation and the rerouting of transmission and distribution lines into the new substation. The public involvement process produced multiple options. He reviewed the site options map, noting the differences among the various sites. The 911 Bernard option had a willing seller, was a larger site easier to meet code requirements, and had a limited amount of street frontage. The public involvement steps to date were presented and the open house summaries noting that there was multiple opportunities for the public to present input. The staff recommendation was to proceed with the 911 Bernard Street option (green option). Council Member Briggs questioned why this new substation was needed and not divide the new construction between the substations on Locust and Hickory. Williams stated that the Hickory site was limited due to the size which would not allow for expansion. The Locust site already had three transformers with no more room for an additional one. Those were two old substations and there was a need for a new station to back up those two locations and spread the load. Council Member Wazny noted that the aerial of map of the locations showed that the blue option was heavily treed. The blue option was DME's original selection but after the second public meeting with comments from residents of the blue option, DME looked an alternative location for the substation. She questioned the total project cost. Williams stated that this was a five year plan costing $403 million to upgrade transmission lines and replace or build substations. Council Member Wazny stated that one concern was that blue site was more expensive than the green site. The blue site was the most sensitive location for large trees and single family homes. Council Member Hawkins questioned the life span of a GIS unit as compared to a regular site. Williams stated it was close to the same 50 years. Council Member Hawkins asked about the cost to run a GIS unit. Williams noted that in some cases it was more cost effective but in other cases it was more expensive if it went off line. Council Member Hawkins asked about the relocation costs. Williams noted that at the time an offer was made, an eligible tenant would receive 42 months of rent differential for rent of a like property. Council Member Wazny asked if due diligence was done for the rental units. Williams stated that 911 Bernard catered to students by the semester. City of Denton City Council Minutes October 20, 2015 Page 23 Mayor Pro Tern Gregory questioned how the relocation costs were determined. Williams stated that the amount was determined by the State in Senate Bill 18. The following individuals spoke during the public hearing: Kyle Goodman, 915 W. Collins, Denton, 76201 — in favor of the green option Karoon Sirilux, 911 Fannin, Denton, 76201 — spoke in opposition Danny Brown, 1011 Peak Street, Denton, 76201 - not in favor of the blue option Vincent Falsetta, 202 Forest, Denton, 76209 - not in favor of the blue option Michael Swanke, 1220 Peak, Denton, 76201 - not in favor of blue option Dr. Ara Minassian, 1015 Peak, Denton, 76201 - not in favor of the blue option Theron Palmer, 1700 Willowwood, Denton, 76205 - not in favor of the blue option Asis Reza, 866 W. Collins, Denton, 76201 - opposed the 911 Bernard site Faisal Reza, 750 W. Collins, Denton, 76201 - opposed to green site John Reed, 1500 Kendolph, Denton, 76205 — spoke in opposition Sam Alexander, 3219 McReynolds, Sanger, 76266 — spoke in opposition Richard Copper, 201 Royal Oaks Court, Denton, 76210 - not in favor of blue, green or yellow site John Littman, 111 Alan -A -Dale, Denton, 76209 - in favor of a GIS facility Steve Stone, 6827 Freeman Road, Krum, 76249 - in favor of orange site. Joe Bower, 1107 Peak Street, Denton, 76201 - put site on university property Willie Hudspeth, Newton Street, Denton, - choose the option that kept more trees. Comment Cards were submitted by: Tonya Littmann, 111 Alan -A -Dale, Denton, 76209 — opposed Silvia Perez, 1115 Neff, Denton, 76201 — opposed The Mayor closed the public hearing. Council Member Roden felt that for financial reasons, the blue option was the better option. He had serious concerns whether the neighborhood would make a comeback as some had mentioned. The green, yellow and orange options were not neighborhood patterns. He would like to preserve the neighborhood in some fashion but was concerned about it. DME and the PUB had recommended the green option. He was leaning towards green option. Council Member Wazny stated that she had been fighting for the neighborhood for seven months. She appreciated the options presented but felt that the right thing was to recommend the green option to preserve the single family homes and neighborhood. Council Member Hawkins stated that he was surprised about the strength of the neighborhood. He was concerned about the increased cost for the green option but would be voting for the green site. Council Member Johnson stated that he was surprised by the comments of the landlords about their rental properties and how they wanted to preserve their properties. He appreciated the comments of the citizens. City of Denton City Council Minutes October 20, 2015 Page 24 Council Member Briggs stated that she appreciated the comments presented at the meeting. She was also advocating for the neighborhood in the blue option. Mayor Pro Tem Gregory stated that while the blue option was the best for rate payers, he was more sympathetic to the green route after hearing comments. Mayor Watts stated that he would not be voting for the green site. If the City wanted to do the right thing and be an innovative public utility company it needed to get on with the GIS technology. While it was expensive, there would not be the extra costs as for other substations. There were no time constraints at this time so other options could be explored that looked at all of the technology available. His reason for not voting for the green site was that it did not go far enough and did not send a message that the City and DME stood for innovation. Council Member Briggs agreed with the Mayor's comments. Council Member Wazny agreed with the Mayor and would include that in her motion. Council Member Johnson did not think the GIS option would be best at Bernard and Eagle and was not in favor of that corner for a substation. He suggested pursuing the green site but not give up on a GIS option. Council Member Hawkins stated that he was still in favor of green site with a GIS option. Council Member Roden state that he had never seriously considered GIS as an option. He agreed with the concern for Eagle and Bernard for a site. Williams stated that staff could talk with the willing landowners and firm up estimates for selling their property. Mayor Pro Tem Gregory requested more information on whether it would be more economical if two were done at the same time. Council Member Briggs stated that she would like to put to rest that the blue site was off the table. Council Member Wazny asked if the resolution was site specific. City Attorney Burgess stated that a motion would be to approve the green site but could also provide direction to DME to gather information on GIS and make determination of GIS at a later date. The motion would be site specific with direction to DME on GIS. Mayor Pro Tem Gregory stated that he could not agree with the green site with a GIS due to the increase in the cost. Mayor Watts stated that he could not vote for green site with a GIS. Council Member Johnson stated that he would prefer to eliminate the blue site and pursue either the green or orange sites. City of Denton City Council Minutes October 20, 2015 Page 25 Council Member Wazny motioned, Council Member Briggs seconded to remove the blue site from consideration for a substation site, leave for future consideration the yellow, green and orange sites to be determined at a later date and to investigate cost and technology. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "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 1. ID 15 -927 Willie Hudspeth regarding City Hall. Mr. Hudspeth spoke regarding the size of the Consent Agenda, putting speakers at the end of the meeting, and presented information concerning burial at the IOOF cemetery. 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. Mayor Pro Tem Gregory requested a report from Human Resources on the number of personnel available for unpaid parental leave, what other cities in the region were doing and who had that type of provision. Mayor Pro Tem Gregory asked for a report on engineering projects and lessons learned with the issue at the church. Council Member Hawkins asked for an Informal Staff Report regarding how much water had been sold and how much people had used for July, August and September. Council Member Wazny asked for options for the Eureka 2 Park project. B. Possible Continuation of Closed Meeting topics, above posted. Mayor Watts announced that the Council would be returning to the Closed Meeting at 12:45 a.m. to consider the items listed below: City of Denton City Council Minutes October 20, 2015 Page 26 C. ID 15 -1024 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 lease of real property interests generally located in the 200 block of W. Hickory Street and the 100 block of S. Locust Street in the City of Denton, Denton County, Texas where deliberation in an open meeting would have a detrimental effect on the position of the Denton City Council in negotiations with a third person. Consultation with the City's attorneys regarding legal issues associated with the lease 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. D. ID 15 -1027 Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding economic development issues regarding a proposed economic development incentive agreement for Project Cartoon. This discussion shall include commercial and financial information the City Council has received from Project Cartoon, a business prospect, 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; deliberate the offer of a financial or other incentive to Project Cartoon. The Council returned to Open Session at 1:45 a.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 -1152, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 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 a motor grader, roller, and backhoe for the City of Denton Street Department; and providing an effective date (File 5981 - awarded to Holt CAT in the amount of $435,717.29). FILE INFORMATION These items are replacements for a 2005 motor grader, 2008 roller, and 2010 backhoe that have met the Fleet Department's replacement criteria regarding downtime and repair costs. A CAT model 430F2 backhoe, CAT model 140M3 motor grader, and CAT model CB24B asphalt roller will be purchased through the Buy Board Cooperative Purchasing Network Contract# 424 -13. The older equipment will be sold at auction once the replacements are in service. Quotes for each item were obtained from four (4) cooperative contract vendors. Staff is recommending to award to the overall lowest price vendor for all three (3) pieces of equipment -Holt CAT (Exhibit 2). The City currently has three (3) CAT motor graders, thirteen (13) CAT backhoes and three (3) CAT rollers. Fleet technicians are trained on CAT products and have access to advanced training through Holt CAT. Many parts are currently stocked for this series of equipment along with diagnostic software and specialty tools. These factors translate into improved efficiencies and productivity and help to minimize costs. Therefore, Holt CAT provides the best value and lowest total cost of ownership over the life of the equipment, to the City. RECOMMENDATION Award the purchase of one (1) CAT model 430F2 backhoe, one (1) CAT model 140M3 motor grader, and one (1) CAT model CB24B asphalt roller to Holt CAT in the amount of $435,717.29. PRINCIPAL PLACE OF BUSINESS Holt CAT Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1152, Version: 1 The purchase and delivery of the equipment will occur within 90 days of purchase order issuance. FISCAL INFORMATION The equipment will be funded from the Fleet Capital Replacement accounts listed below: Equipment Account# Amount Motor Grader 810263408.1355.30100 $292,554.00 Roller 810265408.1355.30100 $ 42,250.54 Backhoe 810266408.1355.30100 $ 100,912.75 Requisition 4125519 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Comparison and Quotes Exhibit 2: Standardization Memo 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 11/12/2015 EXHIBIT 1 Item# Type ID# Buyboard HGAC Buyboard HGAC 424 -13 EM06 -15 424 -13 EM06 -15 1 Motor Grader ST1660 $ 292,554.00 No Bid $ 285,550.00 Under Spec 2 Roller ST1662 $ 42,250.54 $ 34,522.00 $ 48,875.00 $ 38,926.00 3 Backhoe ST1663 $ 100,912.75 No Bid $ 107,500.00 $ 111,167.00 $ 435,717.29 $ 438,243.00 $ 441,925.00 $ 442,647.00 Holt CAT Romco RDO Equipment ASCO Equipment ITEM I —MOTOR GRADER QUOTES Make CASE CATERPILLAR JOHN DEERE Model 8856 AWD 140 M3 AWD 772G / GP Tier 4 �i�ll /I/ •,.. w. l.l�G i(1.� :!, /., ,� % l/ !�'', "r I .�. / iffi�r���s"aw lid "�, �� ! „ / % /,pi II,1,,,, " e 1, / 11 IS I�, e 1, r, ^ lUr„ H�ffffl Engine make / model FPT F4HE9684L Caterpillar C9.3 ACERT I John Deere PowerTech PSS 9.OL Emission Rating Tier 3 Tier 4 Tier 4 Net Power - hp. kW) 214 1 3 272 X203 ' 262 195. ......... ................ Rated rpm - rpm 2200 ..ww...... 20001 not published Gross Power hp(kW) 234 175) 274 204 not published No. of C tinders 6 6 6 _ .._.._....... .. .... • Displacement - Inches&su IT3, Itr _._._._._. 409 6.7 __.._.. 567.5 9 3 548 (9) Peak En inemTor ue Iwbf /�ft Nm 726 984 1000 (1355 �mmmmww 13 _ Transmission Type Powershift Powershift mmmmmmm984 Powershift S eed Ran a Forward 8 8 8 a � -, �% , I'llN ,tip >> l; t �/ J(y %, SI O � f 1. iii � I! r % , i10 Wheelbase - ft /in (mm) 20 ft 5 in 6219 20 ft 1 in 6123 20 ft 3 in 6160 Blade Base b lade to frt wheels -ft /in mmj 8 ft 5 in 2562 8 ft 5 in 2552 8 ft 5 2570 Overall Length - Win mm -28 ft 8534 29 ft 3 in 8912 „in 29 ft 2 in 8890 Overall Height w /cab - Win mm 11 ft 3340 10 ft 10 in 3308 10 ftm5 9 3180 Clearance Under Front Axle - inches �mm� mmmITIT IT� IT ITITITITITIT . not published IT � not published not published Bank Cut Angle - ñ• ø• a 90 90 90 _._.. Shoulder Reach Outside Wheels Right ft /m (mm wwww notwpublished 6 ftw6 in . 1978 _....._....._....._ ITITITIT IT 6 ft 10 in ( 083) Shoulder Reach Outside Wheels Left - ft /in (mm ) not published 5 ft 11 in 1790 6 ft 10 in 2083 ound - inches mm Blade Lift Above Gr.. � 17.5 444.5 18.9 480 19. 3 490 �� _ - - -- Blade Pitch Operation Adjustment Fwd - ø 42 �� ..� 40 . 42 Blade Pitch Operation Adjustment Rear - ø• 87 5 5 Blade Side Shift Right - inches m mm ... ............ 27 X686 ...... ._........7 26 660 �m�ITITITIT m_ 26.9 683 Blade Side Shift Left - inches mm 21 533 20.1 510 26.9 683 Circle Rotation - ø 360 360 360 .._, ..�..�........�........... Circle Diameter - inches mm _._... 69 1752.6 ........6 ............... 60.2 1530 ... ........ ......... 60 1524 Standard moldboard Standard ten th - ft /in mm 14 ft 4267 ( ) 12 ft 2 in (3700 9 12 ft (3660 ..- .._._....... Moldboard Height - inches (mm) 23.6 600 � 24 610 24 610 w „ -, o, „;,n3,,,',Il,l " ",,';J 1 % %111111 °ill'1V l /a °N011�`O ,r� Fuel Tank - gallons US Qtr) 341) 394 110 416.5). ............... _ u._..... ............................ ... ......._... Hydraulic Reservoir - gallons US ) (Itr) ..__.............__....90.. 25 94.6 _...___ .._..____...............104 16.9 64 16(60.5 SAE Operating Weight lbw 41248 (18710) _ 40380 (18316) 17382 Weight on Front Wheelslbsk)�� 13337 6050 13601 6169 ................... .....M........ 38320 10760 4881 m Weight on Tandem Wheels - Ibs k 27910 12660 �mm 32316 14658 _ 27560 12501 na = Not Applicable, np = Not Published UNCONTROLLED COPY This Case website contains records of competitive equipment. CNH assumes no responsibility or liability for any information, specifications, condition reports, photography, availability, pricing, taxes or duties, or warranty information of the competitive equipment. CNH is not responsible for the information contained or not contained regarding the competitive equipment. The User agrees to indemnify CNH, its officers, agents, employees, and other personnel under its control against any and all liability, expenses, attorney fees, and damages arising out of or relating to the use of any record of competitive equipment obtained from this website, including any claims alleging facts that if true would constitute a breach by the User of these terms and conditions. For more information, view our full legal terms and conditions. ITEM I- MOTORGRADER QUOTES Quote 159562 -01 September 3, 2015 CITY OF DENTON 901 TEXAS ST STE A DENTON, TEXAS 76209 -4354 Attention: KEITH GABBARD RE: Quote 159562 -01 Thank you for this opportunity to quote Caterpillar products for your business needs. We are pleased to quote the following for your purchase consideration. One (1) New CATERPILLAR INC Model: 140M3 AWD Motor Graders with all standard equipment in addition to the additional specifications listed below: STOCK NUMBER: HLK027121 SERIAL NUMBER: YEAR: SMU: STANDARD EQUIPMENT POWERTRAIN - Air cleaner, dual stage dry type radial - seal with service indicator and - automatic dust ejector - Air -to -air after cooler (ATAAC) - Belt, serpentine, automatic tensioner - Brakes, oil disc, four - wheel, hydraulic - Demand fan, hydraulic - Differential, lock/unlock, Automatic - Drain, engine oil, ecology - Electronic over -speed protection - Engine, C9 with ACERT technology, diesel - with automatic engine derate and idle - control. EPA/ARB Tier 4 Final & EU stage - IV certified Engine & Aftertreatment - Parking brake, multi -disc, sealed and - oil cooled. - Sediment drain, fuel tank. - Tandem drive - Transmission, 8 speed forward and - 6 speed reverse, power shift, direct - drive - VHP Plus (Variable Horse Power Plus) ELECTRICAL - Alarm, back -up - Alternator, 150 ampere, sealed - Batteries, maintenance free, heavy - duty, 1125 CCA - Breaker panel, ground accessible - Electrical hydraulic valves - Electrical system, 24 volt - Grade Control Ready (Cab harness, - software, electrical hydraulic valves, - bosses and brackets) - Lights, reversing - Lights, roading, roof - mounted, - stop and tail, LED - Starter, electric OPERATOR ENVIRONMENT - Air Conditioning with heater - Articulation, automatic return to center - Centershift pin indicator - Display, digital speed and gear - Doors, left and right side with wiper - Gauge, machine level - Gauges (analog) inside the cab - (includes fuel, articulation, engine - coolant temp, engine RPM, - and hydraulic oil temp, DEF /AdBlue) - Joystick, adjustable armrests - Joystick gear selection, hydraulic - power steering hydraulic controls - (right/left, blade lift w/ float - position, blade sideshift and tip, - circle drive, centershift, front wheel - lean and articulation and steering) - Lights, night time cab - Messenger operator information system - Meter, hour, digital - Mirror, inside rearview, wide angle - Power Port, 12V - Radio Ready, Entertainment - ROPS cab, sound suppressed - - 69dB(A) - ISO 6394 - Seat,cloth- covered, comfort suspension - Storage area for cooler /lunchbox - Throttle control, electronic - Windows: laminated glass - - Fixed front with intermittent wiper - - Door with intermittent wipers (3) - Windows: Tempered - - Left and right side wipers - - Rear with intermittent wiper SAFETY AND SECURITY - Clutch, circle drive slip - Doors, 2 engine compartment, (two left - hand, two right hand) locking - Doors, 2 service, left and right locking - Ground level engine shutdown - Hammer (emergency exit) - Horn, electric - Lockout, hydraulic implement (for - roading and servicing) - Seat belt, retractable 3 & #39; & #39; - Secondary steering - Tandem walkway /guards TIRES, RIMS, AND WHEELS - A partial allowance for tires on - 10 & #39; & #39; x 24 & #39; & #39; multi -piece rims is included - in the base machine price and weight. - FLUIDS - Antifreeze - Extended Life Coolant - 35C/ -30F OTHER STANDARD EQUIPMENT - Accumulators -brake -dual certified - Drawbar,6 shoe w /replaceable wear strips - Fluid check, ground level - Fuel tank, 105 gallon (398 L) - Ground level fueling - DEF /AdBlue Tank, 5.5 gallon (21 L) - Hydraulic lines for base functions - Pump, hydrailic, high capacity - (98cc / 15 cu in) - Radiator, cleanout access - (both sides with swing doors) - SOS ports - engine - hydraulic - - transmission - coolant -fuel - Tandem walkway /guards - Tool box - Debris Guard Page 1 of 3 ITEM I- MOTORGRADER QUOTES Quote 159562-01 MACHINE SPECIFICATIONS '140M3 AD MOTOR GRADER GLOBAL ARRANGEMENT (MOLDBOARD, 14' PLUS RIPPER- SCARIFIER, REAR TOOTH, RIPPER WEATHER, STANDARD AWD ACCUMULATORS, BLADE LIFT PRECLEANER, NON SY -KLONE BASE + 1 (RIP) STARTER ELECTRIC, HEAVY DUTY _ LIGHTS, FRONT HEADLIGHTS, LOW ICAB, PLUS (STANDARD GLASS) SCAB, PLUS (INTERIOR) ;SEAT BELT PRODUCT LINK, SATELLITE PLE631 INSTALLATION, ACCUGRADE READY TIRES, 17.5R25 BS VKT 1* MP GUARD GP, HITCH _ LANGUAGE, ENGLISH DECALS, ENGLISH (U.S,) ANTIFREEZE WINDSHIELD WASHER LIGHTS, WORKING, PLUS TRANSMISSION, AUTOSHIFT LIGHTS, SERVICE, INTERNAL CAMERA, REAR VISION MIRRORS, OUTSIDE MOUNTED GUARD, TRANSMISSION PUSH PLATE, COUNTERWEIGHT JOYSTICK CONTROLS, ADVANCED ,COOLANT, 50/50, -35C ( -31F) - - -- --------------------- . ...... ............................... . ............................... TOTAL LIST PRICE $527,079 BUYBOARD MINIMUM 20% DISCOUNT #424 -13 Sell Price Ext Warranty Total WARRANTY Standard Warranty: Extended Warranty: 12 Months / Unlimited Hour Total Machine 36 Months / 3,000 Hours Premier $292,554.02 Included $292,554.02 Page 2 of 3 ITEM I- MOTORGRADER QUOTES Proposal for. Investment Proposal Date: 9/2312015 CITY OF DENTON Pricing Valid Until: 10123/2015 ACCOUNTS PAYABLE Deal Number 813266 215 E MCKINNEY ST Customer A000unt#: 8410003 DENTON, TX, 762014299 Account Manager. George Jacobs (940) 349 -8410 Phone: (817) 566 -1554 Fax: (817) 566 -1577 Email: GJacobs @rdoequipment.com Equipment Intomiatio Quantity Serial Hours Status / Year / Make / Model Cash Price Number ______ ______________________________� A..... .,, ........,..................... a rox. Additional Items �. �..........(... �pP............. �..................................................... ..........___— ..._____________ .- ------ ...................................................................... ..... ........... ....... —.......................... .............._.._............. 8 TBD 0 New 2015 JOHN DEERE 772G $348,145.54 Other Buyboard 2% Fee $5,600.00 Customer Discount Customer Loyalty ($72,156.54) Warranty -John Deere Full Extended -36 Months, 3000 $3,961.00 Hours, Deductible: 250, Exp Date: 9/23/2018 Equipment Subtotal: $285,550.00 Balance: Total Taxable Amount: Sales Tax Total: Sub Total: Cash with Order. Balance Due: $285,550.00 $285,550.00 $0.00 $285,550.00 $0.00 $285,550.00 D813266 Page 1 of 2 r ITEM I- MOTORGRADER QUOTES Year / Make / Model 2015 JOHN DEERE 772G 8470T - 772G MOTOR GRADER 1020 - ELECTRO HYDRAULIC CONTROLS 1140 - 9.01- ENG,EPA FINAL TIER IV 1240 - ALTERNATOR 200 AMP 1310 - QUICK SERVICE GROUP 1410 - STANDARD FUEL LINES 1610 - HYDRAULIC PUMP DISCONNECT 1700 - JDLINK ULTIMATE(W /SIM1) N.A. 1830 - BLACK EXHAUST STACK 1920 - NO BLADE IMPACT ABSORPTION 2050 - 14'X24 "X7/8" MB (6 "CEX5 /8 ") 2575 - NOT TOPCON READY 2605 - ENGLISH OPERATOR MANUAL 2775 - NO TOPCON RADIO INSTALLATION 2810 - SNGL INPUT W/O SLIP CLUTCH 4611 - 17.5R25 G2 /1-2 1 "MICH 1PC RIM 5060 - EH LOW CAB W/ WINDOWS 5520 - NO AUTOSHIFT TRANSMISSION 5710 - TRANS VALVE SOLENOID GUARD 5815 - HYDRAU- GREASE,OIL,FUEL,COOLN 6030 - NO CAB PRECLEANER 6140 - PREM POST /CONT FAB EH CNTRLS 6555 - EH CONTROL VALVE W/ 1 AUX 6650 - EH PLACE HOLDER 6710 - FRONT PUSH BLOCK 6810 - REAR RIPPER/SCARIFIER COMBO 7130 - STD LIGHT PKG W /LED COLORED 7820 - NO FRONT FENDERS 8110 - CONVERTER, 24/12V 10/15 AMP 8210 - MIRROR, CONVEX EXTERIOR 8310 - LOWER FRONT INT WIPER/WASHER 8410 - RADIO AM /FM/WB 8510-A/C-CHARGE 8730 - NO SOUND ABSORPTION PKG 8810 - REAR CAMERA 9220 - FIRE EXTINGUISHER 9273 - RT SIDE ENGINE WORK LIGHT 9280 - SMV SIGN WITH BRACKET 9360 - HEATER ENG COOLANT, 120V 9450 - REV OVERLAY END BITS D813266 Page 2 of 2 . . . . ............ . . . . .................... . ...... —== ... .... . ....... ......... . . .................. . . . ..... ............... C0NTRAC'11'FF0t1NAW0#kAk~ 4XtWESt Date HGACBuy EM06-15 9/29/2015 For Standard Equipment Purchases No.: Prepared: --- ........ . .................. ............. --- ------- ...... ........... This Worksheet is prepared by Contractor and given to End User. If a PO is issued, both documents MUST be faxed to H-GAC @ 713-993-4548. Therefore please type or print legibly. . . . . . . ............... . . . ..... ......... . . . . ............. ........ . . . . . ......................... . . . ..................... t —i--Yin 9 City of Denton Contractor: iASCO EQUIPMENT Agency: t . . .. . ...... . ....... ........................................... .... . ... . .... ......... . ..... . Contact Prepared :EDDIE SCROGGIN Person: By: . . ........... . . . ................................................................................. . . . .......... . . Phone: Phone: ::817-266-3235 . .............................................................................................................................................................................................................................................................................................. . . . . . ............................ Fax: Fax: ::817-283-7836 ..................... Email: Email: :ESCR0GG1N@ASC0EQ,Q0M Product CASE 885B AWD Motor Grader 7 E'� Description: Code: I ........ .. ............... . . . . . . . . .............................................. . ............. A A. Product Iterri Base [fitit Price Per Contractor's it- GAC Contract : $243, B. Published Options - Ilenlize bcloiv - Attach additional sheet if necessary - Include Option C'ode in description it applicable (,Note: Published (.)plions nre options Miich \vci'c submilted and pxriced in Contntcl(Ws bid.) Description Cost Description Cost Cab w/ heat/ac n/c 3yr/ 3000 hr full machine warranty n/c . .................... . ................................................................ �Ripper 3 teeth $6,731.00 3y/3000 service plan n/c tool box $136.00 3 year site watch n/c . . .... ................. ilkuie 101 $3,059.00 operators manual rtic 17.5 R25 TIRES $5,0�56.00 work light package $124.00 creep mode 11/c Subtotal From Additional Sheet(s): .................. ...................... 1- Subtotal $15,106.006 C. Unpublislied Options - Iteinize below - Altaeb additional sheet if necessary (Note: Unpublished options acre itenis which werc 1101 suhnfid'ed and p6ced in conlraclors bid.) Description Cost Description Cost — --- — ------- t .. . ................ ........... . . . . . ................ Subtotal From Additional Sheet(s). . . . ... . . . . . . - . . . -------- ------ .... . . ......... Subtotal C: E . .................. ......... -- ------------ ......... . . ..... . ...................... -------- ---- ---- ............. Check: Total cost of Unpublished Options (C) cannot exceed 25% of the total of the Base Unit:: For this transaction the percentage is: Price plus Published Options (A+B). W Total ("'04 belbre ally othe• appiieat)tc Ciiargvs, 'rradc-Ins, AllosvAnces, Discounts, Etc. (A+11•-C) Quantity Ordered: = X Subtotal of $258,658.50-1 Subtotal - $258, . 658.00 1[1 K Trade-Ins Special Discounts. I Other Allowances l Freight Installation N16celholeous Charge's, Description Cost Description Cost Freight $2,500.00, Delivery to City $350.00, Subtotal E: $2,850.00 Deliver- .y Datle:'� 30-60 Days 14'. Total Purchase Price (D+E)�]F 261,508.00 L L ....... .... . ................................................... ITEM 2- ROLLER QUOTES Quote 159569 -01 September 2, 2015 CITY OF DENTON STREET DEPT / KATIE GRIFFIN 901 TEXAS ST STE A DENTON, TEXAS 76209 -4354 Attention: KEITH GABBARD RE: Quote 159569 -01 Thank you for this opportunity to quote Caterpillar products for your business needs. We are pleased to quote the following for your purchase consideration. One (1) New CATERPILLAR INC Model: CB24B Paving and Compaction with all standard equipment in addition to the additional specifications listed below: STOCK NUMBER: HLK026927 SERIAL NUMBER., YEAR: SMUT. STANDARD EQUIPMENT POWERTRAIN - Hydrostatic transmission - Service and parking brakes ELECTRICAL - Engine start switch with auto preheat - Backup alarm and warning horn - 65- ampere alternator - 12 -volt electric starting - Maintenance free 70 AH battery, 880 amp - Light roading and working OPERATOR ENVIRONMENT - Gauges: LCD display with fuel level, - hour meter and engine coolant - temperature - Operator warning system indicators : - Parking brake engaged - Hydraulic oil temperature high - Engine coolant temperature high - Electrical system voltage low - Engine oil pressure low - Vibration activated - Engine preheat - Lockable, vandalism guard for instrument - panel. - Travel control, single lever - Seat with : - Fore and aft adjustment - Draining capability - Retractable seat belt 50.8mm /2inch - 2 platform handrails / 2 guardrails - Steering wheel spinner - 12 -volt power points - DRUMS - Two smooth drums : 1200mm/47.2 inch - wide x 720mm/28.3 inch diameter - Selection of front drum, rear drum or - both drum vibration - Pressurized drum watering system with : - Continuous or intermittent modes - Water tank with low level sensor - OTHER STANDARD EQUIPMENT - Locking engine enclosure - Sight gauge for hyd. tank level - Air restriction indicator - Fuel tank - 4 transport tie -down and 4 lift points - 6 Quick connect hyd. pressure test ports - + 1 SOS port - Caterpillar O -ring face -seals couplings - Product link ready - Page 1 of 2 ITEM 2- ROLLER QUOTES MACHINE SPECIFICATIONS C13246 UTILITY COMPACTOR ENGINE T4F CONTROL, TRACTION OIL, BIO HYDR, FACTORY FILLED LIGHTING PACKAGE, STANDARD SEAT, WITH SAFETY SWITCH (BELT, SEAT, 2" SUSPENSION ;SUPPORT, SLIDING FOR SEAT ROPS,FOLDABLE Sell Price Total WARRANTY Standard Warranty: 12 Month / Unlimited Hour Total Machine F.0.13/TERMS: Font Worth - Machine Division Accepted by on $42,250.54 $42,250.54 Signature Thank you for your interest in Holt CAT and Caterpillar products for your business needs. This quotation is valid for 30 days, after which time we reserve the right to re- quote. If there are any questions, please do not hesitate to contact me. Sincerely, Bryan Nichols Machine Sales Representative Holt CAT Bryan. Nichols @holtcat.com 817.308.6612 Page 2 of 2 Proposal for. Investment Proposal Date: 9/21/2015 CITY OF DENTON Pricing Valid Until: 10/21/2015 ACCOUNTS PAYABLE Deal Number. 812512 215 E MCKINNEY ST Customer Aunt#: 8410003 DENTON, TX, 762014299 Account Manager: George Jacobs DENTON Phone: (817) 566 -1554 (940) 349 -8410 Fax: (817) 566 -1577 Email: GJacobs @rdoequipment.com Comments This quote is on the SW502S -1 which is the 51" wide model. If you choose to go with the 54" version, model number SW502W -1, there would be a $2,200 price increase. Equipment Infon- nation Quantity Serial Hours Status / Year / Make / Model Cash Price ........_..... Number (approx.) Additionalltems ....__... _.._ - . 1 TBD 0 New 2016 SAKAI SW502 $48,875.00 Equipment Subtotal: $48,875.00 Purchase Order Totals Balance: $48,875.00 Total Taxable Amount: $48,875.00 Sales Tax Total: $0.00 Sub Total: $48,875.00 Cash with Order. $0.00 Balance Due: $48,875.00 Equipment Options ,Quantity Seal Number ________ Year / Make / Model Description TBD 2016 SAKAI SW502 9999 - WATER SPRAY TIMER 8888 - WORK LIGHT PACKAGE SW502S -1 - 51" DOUBLE DRUM ROLLER FRONT & REAR VIBRATE SELECTABLE D812512 Page 1 of 1 MGACB1 CONTRACT PR&TM VA%M&KO17�ntract EM06-15 Date 9/29/2011 UY For Standard Equipment Purchases o.: Prepared: ....... . ................ ---- — This Worksheet is prepared by Contractor and given to End User. If a PO is issued, both documents MUST be faxed to H-GAC * 713-993-4548. Therefore please type or print legibly. Phone: 11 Phone: i817-266-3235 Fax: Fax: 17-283-7836 Email: Email: ESQR0GGlN@ASC0EQ,QQM Product Code: 07A Description: CASE DV26 Compactor A. Product Item Base Unit Price Per Contractor's 11-GAC'Conlract-, $36,967.0 14. Published 011tions - Itenlize below - Attach additional shect if necessary - Include Opfioll C"odc in descriplion ifapplicable (Notc Published Opfionsare options vyhi(li evcrc submitted raid pm iced in Contractor's bid.) Description Cost Description Cost Double drum roller see above . . . . .............. seat w armrest $133.00 BOPS- weather canapy $576.00 lighting package 11/c Unpublished Options - I temize below - Attach addiflonal sheet ifnecessary ote: 1-Inpublished oplions are iten-l's Which were not "Llbillitted and priced an Contradol"s hid.) Description Cost Subtotal From Additional Sheet(s): . ....................... ------TFj—Sub'1total B: $709.00 Description Cost Subtotal From Additional Sheet(s). -subtotal C-. $0. Check: Total cost of Unpublished Options (C) cannot exceed 25% of the total of the Base Unit:: Price plus Published Options (A+B). For this transaction the percentage is: JI D. Total Cost before any other applicable Charges,'11'rade-Ins, Allowances, Discounts, Ftc. (A+ R+(.') Quantity Ordered: 6 6.00 L Subtotal D: $37,676.00 X Subtotal =7=7 E. Trade-fils Y Special Discounts / Other Allowances i Freight J Installation / Miscellaneous Cliarges . . ........ . ......... . .......................... Description Cost Description Cost Freight $1,000.00 Delivery to City $250.00 Subtotal E: $1,250.0 . . .......... F.Total Purcluise $38,926 0 .y .Date:: 30-60 Days z Attw Charlie Rosendahl CITY 0['1DENTON accts Payable Denton TX 76201 ITEM 2-ROLLER QUOTES ort Worth 'TX 76106 817-6262288 / Fax � 817-626-8983 ROMCO Equipment Co. is pleased to present the f6flowing equipment for your consideration: HGAC Sale Pirice Price does not include any taxes, The above price is vand for 30 days unless specifically extended by ROMCO Equipment Co. Notice is hereby given that ROMCO Equipment (—a. LLC has assigned its rights under this sales contract to ROMCO Exchange Co. LLC to sell the eqWpinent described herein and, if appficaNe, to purchase trade-in property described herein. I== Matthew Chapman ROMCO Equipment Co, Sales EQUIPIMIEN"r FOR 'DIE COINSTRUCT N, WINING AIN D AGGIREGA'rE Nii,)uvrRIES ITEM 3- BACKHOE QUOTES H<>L7 September 3, 2015 CITY OF DENTON STREET DEPT 901 TEXAS ST STE A DENTON, TEXAS 76209 -4354 Attention: KEITH GABBARD RE: Quote 159629 -01 Thank you for this opportunity to quote Caterpillar products for your business needs. We are pleased to quote the following for your purchase consideration. This is valid through 12/15/2015. One (1) New CATERPILLAR INC Model: 430F C4EX Backhoe Loaders with all standard equipment in addition to the additional specifications listed below: STOCK NUMBER: HLK025176 SERIAL NUMBER: OHWE00164 YEAR: 2015 SMU: 10 STANDARD EQUIPMENT BOOMS, STICKS AND LINKAGES - 15 & #39; Center pivot excavator style - backhoe - Pilot operated joystick hydraulic - controls with pattern changer valve - Pilot operated stabilizer controls - Boom transport lock - Swing transport lock - Street pads stabilizer shoes - Anti -drift hydraulics - (Boom, Stick and E- Stick) - Cat Cushion Swing(tm) system - Bucket level indicator - Lift cylinder brace - Return -to -dig (auto bucket positioner) - Self- leveling loader with single lever - control - Transmission neutralizer switch - Single Tilt Loader POWERTRAIN - Cat C4.4, 86kW (Net 108 HP /81 kW) - Direct Injection Turbo Charged Engine, - with ACERT technology. - US EPA Tier4 Final Emissions Compliant - with Selective Catalytic Reduction(SCR) - Water separator with service indicator - Thermal starting aid system - Eco mode - A dry-type axial seal air cleaner with - integral precleaner, automatic dust - ejection system & filter condition - indicator - Hydraulically boosted multi -plate wet - disk brake with dual pedals & interlock - Differential lock - Drive -line parking brake - High Ambient Cooling Package - Torque converter - Transmission - -four speed synchro mesh - with power shuttle & neutral safety - switch - Spin -on fuel, engine oil & transmission - oil filters - Outboard planetary rear axles - Open Circuit Breather - HYDRAULICS - Load sensing, variable flow system - with 43 gpm axial piston pump - 6 micron hydraulic filter - O -ring face seal hydraulic fittings - Caterpillar XT -3 hose - Hydraulic oil cooler - Pilot control shutoff switch - PPPC, Flow- sharing hydraulic valves - Hydraulic suction strainer - ELECTRICAL - 12 volt electrical start - 150 ampere alternator - Horn and Backup Alarm - Hazard flashers /turn signals - Halogen head lights (4) - Halogen rear flood lights (4) - Stop and tail lights - Audible system fault alarm - Key start/stop system - 880 CCA maintenance free battery - Battery disconnect switch - External /internal power receptacles(12v) - Diagnostic ports for engine and machine- Electronic Control Modules -Remote jump start connector - OPERATOR ENVIRONMENT - Lighted gauge group - Interior rearview mirror - Rear fenders - ROPS canopy - 2 -inch retractable seat belt - Tilt steering column - Steering knob - Hand and foot throttle - Automatic Engine Speed Control - One Touch Low Idle - Floor mat and Coat Strap - Lockable storage area - Air suspension seat - OTHER STANDARD EQUIPMENT - Hydrostatic power steering - Standard Storage Box - Transport tie -downs - Ground line fill fuel tank with 44 - gallon capacity - Ground line fill diesel exhaust fluid - tank with 5 gallon capacity - Rubber impact strips on radiator guards - Bumper - CD -ROM Parts Manual - Backhoe Safety Manual - Operations and Maintenance Manual - Lockable hood - Tire Valve Stem Protection - Long Life Coolant -30C ( -20F) - Padlocks (2 on ST, 3 on IT) Page 1 of 3 ITEM 3- BACKHOE QUOTES Quote 159629 -01 MACHINE SPECIFICATIONS j430F2 BHL ST, TIER 4, HRC (STICK, EXTENDABLE, 16FT PT, 4WD, STD SHIFT ENGINE, 86KW, C4.4 ACERT, T4F HYDRAULICS, GP, 6FCN /8BNK, ST CAB, DELUXE _ SEAT, DELUXE FABRIC BELT, SEAT, 2" SUSPENSION AIR CONDITIONER, T4 TIRES, 4WD, BIAS, FIRESTONE COUNTERWEIGHT, 1015 LBS STABILIZER PADS, FLIP -OVER (BUCKET -GP, 1.5 CYD (CUTTING EDGE, TWO PIECE,WIDE !BUCKET -HD ROCK, 24" 7.0 CFT (SERIALIZED TECHNICAL MEDIA KIT RIDE CONTROL COUPLING,QD,THREADED WITH CAPS LINES, COMBINED AUX, E -STICK FAN, DELUXE CAB 1PRODUCT LINK, CELLULAR, PL6411 (BATTERY, HEAVY DUTY 1PLATE GROUP - BOOM WEAR GUARD, STABILIZER SERVICE FILTER PACK, T4/C4.4 RUST PREVENTATIVE APPLICATOR SHIPPING /STORAGE PROTECTION PACK, DOMESTIC TRUCK COUPLER, PG, MANUAL, DUAL LOCK PINS, SPARE ...... .......____....._. TOTAL LIST PRICE $155,793 11-111, ________.._... _ __.._.. .___................ — - - -._ _.... ............... BUYBOARD MINIMUM 16% DISCOUNT #424 -13 F.O.B /TERMS: Fort Worth - Machine Division Page 2 of 3 ORD* EQUIPMENT CO. Proposal for: CITY OF DENTON ACCOUNTS PAYABLE 215 E MCKINNEY ST DENTON, TX, 762014299 (940) 349 -8410 Equipment Information Quantity Serial TBD Purchase Order Totals Equipment Options ITEM 3- BACKHOE QUOTES Investment Proposal (Quote) RDO Equipment Co. 5301 Mark IV Parkway Fort Worth TX, 73131 Phone: (817) 232 -8094 - Fax: (817) 847 -0398 Investment Proposal Date: Pricing Valid Until: Deal Number: Customer Account#: Account Manager: Phone: Fax: Email: Hours Status / Year / Make / Model pprox,) Additional Items 0 New 2015 JOHN DEERE 410L Customer Discount Buyboard Discount Contract 424 -13 Customer Discount Customer Loyalty 9/21/2015 10/21/2015 812519 8410003 George Jacobs (817) 566 -1554 (817) 566 -1577 GJacobs @rdoequipment.com Equipment Subtotal: Balance: Total Taxable Amount: Sales Tax Total: Sub Total: Cash with Order: Balance Due: Quantity Serial Number Year / Make / Model Description I'll -- — ..... 1 TBD 2015 JOHN DEERE 410L OABOT - 410L BACKHOE LOADER 1065 - ENGINE FT4 1700 - JDLINK ULT W /850/1900MHZ 3YR 2035 - CAB 2401 - DECAL ENG W /ENG PACKET 3095 - AXLE MFWD W /LIM SLIP & AUTO 4466 - TIRE GAL 21 L24 12.5/80 -18 5285 - CONTROL PILOT 5450 - COUPLER UNIVERSAL 5656 - BUCKET HD 24" 7.5CU FT 6020 - DIPPER EXTENDABLE 6220 - HYD REAR AUX 1 WAY FLOW 7035 - LDR CPLR 1 LEVER NO AUX W /RC 7660 - LDR BKT 1.5CY LONG LIP CPLR 8455 - COUNTERWEIGHT 750LB. 8625 - BATTERY SINGLE 9505 - MFWD FULL GUARD 9917 - RADIO BASIC PACKAGE 9919 - SUN VISOR 9965 - SEAT AIR SUSPENSION CLOTH Cash Price $185,699.79 ($50,699.79) ($27,500.00) $107,500.00 $107,500.00 $107,500.00 $0.00 $107,500.00 $0.00 $107,500.00 D812519 Page 1 of 1 HGACBuy N_C IIMtract EM06 -15 ate 10 /1 /2015 For Standard Equipment urcases No.: reare : This Worksheet is prepared by Contractor and given to End User. a PO is issued, documents MUST be faxed to - 713-993-4548. ere re please type or print legibly. - --. ...._...._..._ __...._ Buying :City of Denton Contractor: ASCO EQUIPMENT Agency: ............._ __ W...............-....... ............................ ..- .____.m.. ......... ._ .... ... _.._ _.. ..... . .... . ... ....... ....... . _.'_ ........... ___ ._ ... .......... Contact Prepared Person: :Charles Rosendahl By: :Carman Fortenberry Phone:mmmmm- .,940- 349 -8422 Phone: :940 -372 -0072 Fax: Fax: Email: ha „... ...... dahlm@t plyoldentoll r�rrl ITITITITITIT___.- Emau C'l lter'1l erry t sonar qw c (I Product 07J CASE 590SN T4 Final 4WD BACKHOE Descnphon: Code: - A. I"ra'duct hewn [lase hull Ili-ice Per t on(racl:ow's 11•GAC Contratc;t: $87,990�(')Cl 13. Published Options - Itcluire below - Attach additional slteel if necessary - Include Opt'iola Code ill description if appllcahle (Not c: Published 1 11flons :ure trp6ons which "vre aw brili :ted and priori in f'onprawctorN hid.) Description Cost Description Cost 4WD Standard Transmission n/c Convenience Pkg- beacon, dual batteries, jump start $818.00 Extend a hoe $4,410.00 Pilot Controls w /Powerlift $1,621.00 Deluxe cloth air seat $356.00 Uni- direct hydraulics (Hammer /Thumb) r $1,857.00 c.ounterwc�igilt 'I 1�0011'rs $292.00 Mechanical quick coupler $731.00 . ... _.I _.... operators manual n /c, 24” Backhoe rock bucket $1,615.00 seat belt n/c tool box $119.00 »... w....... ........�.......�,.._......_._ . ......................... ... ......- ...... 93" Loader Bucket w/ BOE 1.5 cu. yd. $2,097.00 l"lip over stabilizer pads $565.00 .......... Cab with LH door, heat and a/c : $5,906.00 Auto Ride control $940.00 Subtotal From Additional Sheet(s ............. ): Subtotal B : $21,327.O�i ('.'. thipublished Options - Ilcinize below - Attach additional sheet if ucccssury (Nole: tJnpkfl)la ^ihed options are items evhich wa :re not suhlnfted and priced in Conit< "ta• or's hid.) Description Cost Description Cost . . s Subtotal From Additional Sheet(s). ........... ...__ ...................................... __ ._ ..... _....._ - ......... ....... _ -wwwww Subtotal C. $0.001 heck: Total cost of Unpublished Options (C) cannot exceed 25% of the total of the Base Unit; For this transaction the e p percentage is: n............. Price plus Published Options (A +B ). € D 'I otal t"ost before ally other aw a lic able t'lrita °Otis 'l "t ^twcic -ins, Allowances, Discounts, Etc, r1°rB t "' II � r T � � Quantity Ordered: 1 X Subtotal of A + B + C: $109,317 00 Subtotal D $109 317 00 �_ ,.,.,.,.,...�w� ........ ... L Trade -Ins I Special Discounls 0 Other Allowatwces Freight I Installation A Miscellaneous Charges ges Description Cost Description Cost Freight $1,500.00 Delivery to City $350.00 9 Subtotal E $1,850.00 Delivery Date. � 30 -60 Days F. total Pu l°claI<se Price (1) -1 -1) $t11,167.aa EXHIBIT 2 MEMORANDUM DATE: November 6, 2015 TO: Elton Brock FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente SUBJECT: HOLT CATERPILLAR 1 Q J 11� M FN'T PURCHASE Fleet Services is recommending the purchase of construction equipment from HOLT Caterpillar, the authorized North Texas dealer for sales and service of Caterpillar equipment. HOLT CAT has been utilized by Fleet Services for many years. The City currently has 3 CAT motorgraders, 13 CAT backhoes and 3 CAT rollers in service. Fleet technicians are trained on the CAT products and have access to advanced training through HOLT CAT. Many parts are also currently stocked for this series of construction equipment along with diagnostic software and specialty tools. These factors translate into improve efficiencies and productivity which minimize costs. I believe the purchase of construction equipment from HOLT CAT, is the best value for the City of Denton and I am respectfully requesting authorization to continue these purchases. R µgards, Iwo „� Kader Fleet Services Superintendent 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 A MOTOR GRADER, ROLLER, AND BACKHOE FOR THE CITY OF DENTON STREET DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5981- AWARDED TO HOLT CAT IN THE AMOUNT OF $435,717.29). 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 5981 Holt CAT $435,717.29 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 5981 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 -1153, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 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 Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the acquisition of two (2) Pierce Velocity Pumper Fire Engines for the City of Denton Fire Department; and providing an effective date (File 5987- awarded to Siddons- Martin Emergency Group, LLC in the amount of $1,180,082). FILE INFORMATION The replacement of fire apparatus is based on the evaluation of criteria including age, hours, mileage and maintenance costs, which are translated into a points system by Fleet Services' Fleet Management software system. The threshold for vehicle replacement is fifteen (15) points. The acquisition of new Pierce Velocity Pumpers is the result of the coordinated efforts of Fleet Services and the Fire Department to ensure vehicles and equipment are replaced in a timely manner. This ensures the safe and efficient response capability of the Denton Fire Department. The City of Denton Fire Department has standardized fire apparatus to Pierce manufacturing to create efficiencies with service, maintenance and parts supplies available through the local vendor, Siddons- Martin Emergency Group, LLC. Siddons- Martin Emergency Group, LLC the only authorized Pierce dealer in the State of Texas (Exhibit 1), submitted a quote through the H -GAC Cooperative Purchasing Program Contract# FS 12- 13 for the two (2) trucks. A non - contract quote was also obtained for comparison purposes (Exhibit 2). The first new fire truck to be received is proposed to enter frontline service as a replacement for FD7100. FD7100 will enter reserve status and replace FD0127 which was placed in service in March 2001 and has been in reserve status since November 2007. To date, FD0127 has accumulated 10,686 hours of service and a maintenance and repair cost of $186,770. This unit will be scheduled for auction/or disposal when the proposed new truck is received and placed in service. The manufacturer has communicated that delivery will be within 10 -12 months of order date, indicating the first new pumper fire truck may be delivered as early as September 2016. By submitting a down payment of $637,010 for the two (2) pumper trucks, the City of Denton will receive a prepay discount of $19,510 and avoid potential price increases related to material costs. The balance of the purchase price for the first delivered truck, $318,505, will be due upon receipt. Final payment for the second City of Denton Page 1 of 2 Printed on 11/12/2015 File M ID 15 -1153, Version: 1 pumper truck will be included in the Fiscal Year 2016 -2017 budget. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) 1) Review and adoption of the FY 2015 -2016 Vehicle Replacement Schedule through adoption of the FY 2015 -2016 Annual Operating Budget. 2) Certificate of Obligation Reimbursement Resolution, October 20, 2015. RECOMMENDATION Staff recommends the approval of the purchase of two (2) Pierce Velocity Pumper Fire Trucks in the amount of $1,180,082, with a down payment of $637,010 to be paid Siddons- Martin Emergency Group, LLC. upon Council approval. PRINCIPAL PLACE OF BUSINESS Siddons - Martin Emergency Group, LLC. Denton, TX ESTIMATED SCHEDULE OF PROJECT The delivery of two (2) Pierce Velocity Pumper Trucks will occur within 300 -330 days of purchase order issuance and receipt of down payment. FISCAL INFORMATION The trucks will be funded from the Fleet Services Capital Fund account 810254408.1355.30100. Requisition 4126628 has been entered in the Purchasing Software System for the required down payment for both trucks. F XArRrTC Exhibit 1: Pierce Authorized Dealer Letter 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 11/12/2015 Pierce Customer Sea 2600 American Drive P.O. Box 2017 Appleton, WI 54914 January 2, 2015 To Whom it may concern: EXHIBIT I WE'VE GOT e YOUR - SACK Since 1917, Pierce Manufacturing has provided the finest fire apparatus in the industry. The quality of our products and service are our number one priority. In order to provide you with the personalized level of service you deserve, Pierce Manufacturing has established a widespread network of authorized dealers throughout the country. S'iddons- Martin Emergency Group is the authorized dealership in Texas, Louisiana, and New Mexico supporting the Pierce fire apparatus product line. They are the sole source for parts and warranty service in this area accordingly and are extremely qualified to provide you with the service you have come to expect. Siddons - Martin Emergency Group is also the authorized sole source parts distributor for aftermarket service and support for the Oshkosh Airport product line as well within the states of Arizona, Louisiana, New Mexico, Oklahoma, Texas, and Clark County, NV. Please contact them directly for any requests concerning both product lines. Siddons- Martin Emergency Group can provide you parts and labor for any of thie apparatus at the quality you';,deserve. Sincerely: Kevin Hanegr Directory Afte rket Support OSH I" M K0 E ® SPE HASTY AIRPORT VEHICLES PRODUCTS • • • • 0 N 0 z E 0 LL C> C> CD CD C> C� CD C) CD Ln Ln C 14 rN iA- oq I_z CL :3 E 0 0 U 2 E 4 0 0 C) L- C) (3) LU c L/) 70 70 0 z E CD = r) w 0- CD ro I Ln ro m m E C� U') C: E :3 ou r) CV 0 _0 _0 r) 4-J C) > Q- M C) M 3: C) 00 C) rn r) U') 0 LLl 0) L- 0) 0 4-J C) C:) Q r', ru,,) CD O CD CD CD CD CD C� C) r� CD 1.0 m CD CD ui V) 1-1 ;I- CD C'� oo u C ra m iA- cr� m C) Ln Lr) iA- 00 T--i T-Z 4dnr u E 0 0 u C J m � E co V) C: 0 _0 _0 LU E CD V) @j = C u r) Lli ro 0- ro m 0- E E o° —'LM °- r) 4-J C) _0 0 >a C) M 3: C) C) C: O 0 0 UJ Zo 0) 0 4-J C) Q I No 1 z w w :D 0 0 w U- cUn I < CL < u U) W Z CL w co < Q) LU 0 0 Ul I < co 0 C) IL =) U') =) 0 z E 0 LL EXHIBIT 2 HGACBuy CONTRACT PRICING WORKSHEET For MOTOR VEHICLES Only Contract FS12 -13 No.: Date 11105115 Prepared: This Worksheet is prepared by Contractor and given to End User. If a PO %s issued, both documents MUST befaxed to H GAC 713 -993 -4548, Therefore please type or punt leqzbly. Buying ;Denton Fire Department Agency: Contractor: ;Siddons -Martin Emergency Group Contact :Monty Perry Person: Prepared :Jeff Doran By: Phone: :940 -349 -8840 Phone: :800- 784 -6806 Fax: :940 -349 -8897 Fax: :281- 442 -0850 Finaa: :M onty.perrya-cityofdenton.com Email: 1 idoran(d_)siddons- martin.com Product UCOS code: Description: ' Pierce Saber, 4 -Door, Full -Tilt, Aluminum Cab, Aluminum Body, Single Axle, 1250 GPM Pump, Mid - Mounted Pumper A. Product Item Base Unit Price Per Contractor's H -GAC Contract: $316,530.00 B. Published Options - Itemize below - Attach additional sheet(s) if necessary - Include Option Code in description if applicable. (Note: Published Options are options which were submitted and priced in Contractor's bid.) Description Cost Description Cost Subtotal From Additional Sheet(s): 11 $215,694.00 Subtotal B: i $215,694.00 C. Unpublished Options - Itemize below / attach additional sheet(s) if necessary. (Note: Unpublished options are items which were not submitted and priced in Contractor's bid.) Description Cost Description Cost Subtotal From Additional Sheet(s): $65,572.00 Subtotal C: i $65,572.00 Check: Total cost of Unpublished Options (C) cannot exceed 25% of the total of the Base Unit: Price plus Published Options (A +B). For this transaction the percentage is: $0.12 D. Total Cost Before Any Applicable Trade -In / Other Allowances / Discounts (A +B +C) Quantity Ordered: 2 X Subtotal of A + B + C: 597795.9953 = Subtotal D: i $1,195,591.99 E. H -GAC Order Processing Charge (Amount Per Current Policy) Subtotal E: i $2,000.00 F. Trade -Ins / Other Allowances / Special Discounts / Freight / Installation Description Cost Description Cost Chassis Pre - Payment Discount - $19,510.00 Aerial Pre - Payment Discount 100% Pre - Payment Discount Trade Inn AllowAnce Subtotal F: i - $19,510.00 Delivery Date:: G. Total Purchase Price (D +E +F): $1,178,081.99 H -GAC Contract Pricing �'gI +�dF' If.0 f Eo :herring the 5authwest October 26, 2015 MONTY PERRY, Captain DENTON FIRE DEPARTMENT 332 E HICKORY Denton TX 76201 RE: Proposal for VELOCITY PUMPER EXHIBIT 2 3500 Shelby Lane Denton, Texas 76207 GDN P115891 TXDOT MVD No. A115890 EIN 27- 4333590 Siddons- Martin Emergency Group, LLC is pleased to provide the following proposal to DENTON FIRE DEPARTMENT. Unit will comply with all specifications attached and made a part of this proposal. Total price includes delivery FOB DENTON FIRE DEPARTMENT and training on operation and use of the apparatus. Description Amount EP677550 -484 Velocity Pumper 2016 Pierce, Velocity, Pumper, DD13 500hp, 750 gal, Waterous 2000 Price guaranteed for 30 days. Delivery within 10 -11 months of order date. Vehicle Price $ 597,796.00 Chassis Prepay Discount ( $ 9,755.00). $ 318,505.00 due with order. Prepay Discount ($ 9,755.00) SUB TOTAL $ 588,041.00 " Must order by 12/1/2015; HGAC price discounts expire Dec 1, 2015 H -GAC FS12 -13 $ 2,000.00 TOTAL $ 590,041.00 Taxes. Tax is not included in this proposal. In the event that the purchasing organization is not exempt from sales tax or any other applicable taxes and /or the proposed apparatus does not qualify for exempt status, it is the duty of the purchasing organization to pay any and all taxes due. Balance of sale price is due upon acceptance of the apparatus at the factory. Late Fee. A late fee of .033% of the sale price will be charged per day for overdue payments beginning ten (10) days after the payment is due for the first 30 days. The late fee increases to .044% per day until the payment is received. In the event a prepayment is received after the due date, the discount will be reduced by the same percentages above increasing the cost of the apparatus. Cancellation. In the event this proposal is accepted and a purchase order is issued then cancelled or terminated by Customer before completion, Siddons- Martin Emergency Group may charge a cancellation fee. The following charge schedule based on costs incurred may be applied: (A) 10% of the Purchase Price after order is accepted and entered by Manufacturer; (B) 20% of the Purchase Price after completion of the approval drawings; (C) 30% of the Purchase Price upon any material requisition. The cancellation fee will increase accordingly as costs are incurred as the order progresses through engineering and into manufacturing. Siddons- Martin Emergency Group endeavors to mitigate any such costs through the sale of such product to another purchaser; however, the customer shall remain liable for the difference between the purchase price and, if applicable, the sale price obtained by Siddons- Martin Emergency Group upon sale of the product to another purchaser, plus any costs incurred by Siddons- Martin to conduct such sale. Acceptance. In an effort to ensure the above stated terms and conditions are understood and adhered to, Siddons - Martin Emergency Group, LLC requires an authorized individual from the purchasing organization sign and date this proposal and include it with any purchase order. Upon signing of this proposal, the terms and conditions stated herein will be considered binding and accepted by the Customer. The terms and acceptance of this proposal will be governed by the laws of the state of TX. No additional terms or conditions will be binding upon Siddons- Martin Emergency Group, LLC unless agreed to in writing and signed by a duly authorized officer of Siddons- Martin Emergency Group, LLC. Proposal 300359.8 112 10 -26 -2015 EXHIBIT 2 Russe|Mahra Siddons-Marbn Emergency Group, LLC |. the authorized representative of DENTON FIRE DEPARTMENT, agree to purchase the proposed and agree to the terms of this proposal and the specifications attached hereto. Signature & Date Proposal 300359.8 212 10-2*-205 Non - Contract Pricing October 26, 2015 MONTY PERRY, Captain DENTON FIRE DEPARTMENT 332 E HICKORY Denton TX 76201 EXHIBIT 2 3500 Shelby Lane Denton, i GDN P115891 Siddons- Martin Emergency Group, LLC is pleased to provide the following proposal to DENTON FIRE DEPARTMENT. Unit will comply with all specifications attached and made a part of this proposal. Total price includes delivery FOB DENTON FIRE DEPARTMENT and training on operation and use of the apparatus. Description Amount _. ............ ... ............... _ - -_ EP677550 -484 Velocity Pumper 2016 Pierce, Velocity, Pumper, DD13 500hp, 750 gal, Waterous 2000 Price guaranteed for 6o days. Delivery within 10 -11 months of order date. Vehicle Price $ 640,477.00 Chassis Prepay Discount ( 9,755.00). 318,505.00 due with order. Prepay Discount ($ 9,755.00) ......... TOTAL $630, 722.00 * NON COOPERATIVE PURCHASING PROPOSAL (no HGAC or Buyboard price concessions or discounts) Taxes. Tax is not included in this proposal. In the event that the purchasing organization is not exempt from sales tax or any other applicable taxes and /or the proposed apparatus does not qualify for exempt status, it is the duty of the purchasing organization to pay any and all taxes due. Balance of sale price is due upon acceptance of the apparatus at the factory, Late Fee. A late fee of .033% of the sale price will be charged per day for overdue payments beginning ten (10) days after the payment is due for the first 30 days. The late fee increases to .044% per day until the payment is received, In the event a prepayment is received after the due date, the discount will be reduced by the same percentages above increasing the cost of the apparatus, Cancellation. In the event this proposal is accepted and a purchase order is issued then cancelled or terminated by Customer before completion, Siddons- Martin Emergency Group may charge a cancellation fee. The following charge schedule based on costs incurred may be applied: (A) 10% of the Purchase Price after order is accepted and entered by Manufacturer; (B) 20% of the Purchase Price after completion of the approval drawings; (C) 30% of the Purchase Price upon any material requisition. The cancellation fee will increase accordingly as costs are incurred as the order progresses through engineering and into manufacturing. Siddons -Martin Emergency Group endeavors to mitigate any such costs through the sale of such product to another purchaser; however, the customer shall remain liable for the difference between the purchase price and, if applicable, the sale price obtained by Siddons -Martin Emergency Group upon sale of the product to another purchaser, plus any costs incurred by Siddons- Martin to conduct such sale. Acceptance. In an effort to ensure the above stated terms and conditions are understood and adhered to, Siddons -Martin Emergency Group, LLC requires an authorized individual from the purchasing organization sign and date this proposal and include it with any purchase order. Upon signing of this proposal, the terms and conditions stated herein will be considered binding and accepted by the Customer. The terms and acceptance of this proposal will be governed by the laws of the state of TX. No additional terms or conditions will be binding upon Siddons -Martin Emergency Group, LLC unless agreed to in writing and signed by a duly authorized officer of Siddons -Martin Emergency Group, LLC. Proposal 300359.8 112 10 -26 -2015 EXHIBIT 2 0ussel|Mabra SiddonsMarUn Emergency Group, LLC |. the authorized representative ufDENTQM FIRE DEPARTMENT, agree tm purchase the I'll proposed and agree to the terms of this proposal and the specifications attached hereto. Proposal 300359.8 212 10-26-205 EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE HOUSTON - GALVESTON AREA COUNCIL OF GOVERNMENTS (H -GAC) COOPERATIVE PURCHASING PROGRAM FOR THE ACQUISITION OF TWO (2) PIERCE VELOCITY PUMPER FIRE ENGINES FOR THE CITY OF DENTON FIRE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5987- AWARDED TO SIDDONS- MARTIN EMERGENCY GROUP, LLC IN THE AMOUNT OF $1,180,082). WHEREAS, pursuant to Ordinance 95 -107, the Houston - Galveston Area Council of Government (H -GAC) 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 Houston - Galveston Area Council of Government (H -GAC) 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 numbered items in the following numbered file for materials, equipment, supplies, or services, are hereby approved. FILE NTTMBF.R VF.NT)OR AMOUNT 5987 Siddons- Martin Emergency Group, LLC $1,180,082 SECTION 2. By the acceptance and approval of the above numbered items set forth in the referenced file, the City accepts the offer of the persons submitting the bids to the H -GAC 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 H -GAC, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by H -GAC, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the EXHIBIT 3 Proposal submitted to H -GAC, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5987to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated items, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 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 -1154, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 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 two (2) flushing trucks for the City of Denton Wastewater Collections Department; and providing an effective date (File 5988- awarded to Rush Truck Center in the amount of $486,061.25). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION These trucks are replacements for older 2008 and 2009 models that have met the Fleet Department's replacement criteria regarding downtime and repair costs. One (1) truck is a full size flushing truck that is used for cleaning sewer lines throughout the City. The other truck is a smaller truck, called a "hotshot" truck that is used for responding to line blockages and for degreasing sewer lines. The Vac -con model PD3611HE will be mounted on a Peterbilt model 348 chassis and the John Bean model SJS70430 will be mounted on an Isuzu model W5500 chassis. Both trucks will be purchased through the Buy Board Cooperative Purchasing Network Contract# 430 -13. Quotes for each truck were obtained from three (3) cooperative contract vendors (Exhibits 1 and 2). The Fleet Department currently has a policy in place to standardize truck chassis to Peterbilt models whenever possible (Exhibit 3). Fleet standardization minimizes costs and improves efficiencies relating to technician training, diagnostic software, required specialty tools, and stocking of replacement parts. Also, the City of Denton is currently set up as a warranty provider for Peterbilt trucks which allows City staff to perform repairs that are covered under warranty, which reduces downtime and costs associated with the transportation of Peterbilt trucks to a repair facility. Therefore, purchasing a flushing truck with a Peterbilt 348 chassis (as shown on Exhibit 1) provides the best value and lowest total cost of ownership over the life of the equipment, to the City. On the "hotshot" flushing truck, the Isuzu W550 chassis is the only model that can be utilized with the John Bean model flushing equipment. Since this is lowest price quote meeting specification, staff is recommending this as the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 9, 2015, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1154, Version: 1 RECOMMENDATION Award the purchase of two (2) flushing trucks to Rush Truck Center in the amount of $486,061.25. PRINCIPAL PLACE OF BUSINESS Rush Truck Center New Braunfels, TX ESTIMATED SCHEDULE OF PROJECT The purchase and delivery the flushing trucks will occur within thirty (30) days of purchase order issuance. FISCAL INFORMATION The flushing truck (Fleet ID4WC1614) and hotshot truck (Fleet ID4WC1612) will be funded from Wastewater Vehicle Replacement Fund accounts 645066645.1355.30100 and 645064645.1355.30100 respectively. Requisition 4126610 has been entered in the Purchasing software system. EXHIBITS Exhibit L Flushing Truck Quotes and Comparison Exhibit 2: Hotshot Truck Quotes and Comparison Exhibit 3: Standardization Memo Exhibit 4: Public Utilities Board Draft Minutes Exhibit 5: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Terry Kader at 349 -8479. 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LUM 11111 C)7 k TO YOU TEXAS VAC -CON DEALERSHIP 726 So. Sherman St. Richardson, TX 75081 Proposal Buyboard Quote 1 CONTRACT# 430 -13 Date 8/20/2015 Number27361 Type of Quote Dual REV1082015 City of Denton, Texas Retail Purchaser Collections Ship To 801 Texas Street Denton, Texas Comments ** *JOHN DEERE 4 CYL 140HP / TIER 3 (WHILE SUPPLIES LAST) Model Number - V PD611HE /100 (824 at 1880) L H A -O Standard Equipment Includes: Vacuum System (11 CUBIC YARDS -1300 FRESH WATER) Vacuum Drive: HYDROSTATIC DRIVE(NOTHING COUPLED TO TRANSMISSION) 3/16" Corten Steel Debris Tank - (11 Yard) Full opening rear door Hydraulic rear door locks, with door grabber with safety latch 5" Butterfly valve with 10' layflat hose Debris tank Dumping: minimum 50 deg., hydraulic scissors lift - power up /power down Polyethylene water tank Automatic Vacuum Breaker and overfill protection 8" vacuum intake hose Boom travel tie down 4 Way hydraulic boom with 270 deg. Rotation and joystick controls Front mounted 600' capacity (1" hose) /hydraulic hose reel 60 gpm /2000 psi water pump system Water pump drive: Standard Aux Engine UPGRADED TO JOHN DEERE 140HP TIER 3 400' high pressure jet rodder hose ( 3/4 ") Manual hose rewind guide Hose guide (Tiger Tail) 30" leader hose 20 gpm at 600 psi wash down hand gun with 25' of hose and nozzle Sealed and locking tool box (es) (as indicated by model number) 1) each sanitary and penetrator nozzles 20.5' aluminum intake pipe(1 -3', 1 -5', 1 -6', and 1 -6.5' nozzle) ICC lighting DuPont Elite Polyurethane Paint 12 month standard warranty - see certificate for details Note: PD Units Include Price for required Hydrostatic Drive Option„ 5# Fire Extinguisher Set Triangles Main Information Model PD3611HE/1300 (824 at 18 ") Blower Hydrostatic Drive Boom 10' Aluminum Telescoping Boom with Pendant Control Station Hose Reel Front Mounted, Articulating to Driver Side (Std Pivot) Jet Rodder Hose 1000'x 3/4" 3000 psi Water System 50 gpm /3000 psi Pump Water Pump Giant Auxiliary Engine JD 140HP Tier3 Other Items Qty Description 1 Debris Body "Power Flush" System, 8 jets 1 6" Knife Valve with Center Post and Handle, in Lieu of the 5" Butterfly Valve (662 -0125) 1 A Flat Style Rear Door ilo Dome Style Door Including Hydraulic Opener will be Provided 1 Rear splash guard (4 - 8 O'clock) - tank mounted 1 Winter Recirculating System for Rodder Hose 1 Air Purge System 1 Pre -Tank Water Filter (Y -type) 1 1/4 turn ball valve water drain ( cannot choose both 2 -1/2" gate valve and 1/4 turn ball valve, only choose one) 1 Lazy Susan Pipe Rack (Holds 5 Pipes) 1 LED strobe with Limb Guard, Rear Debris Tank Mounted 1 LED 4 Strobes - (2) front bumper / (2) rear bumper 1 LED Arrow Board, Rear Debris Tank Door Mounted 1 ICC - LED Lighting Package 1 Low Water Alarm with Light 1 Remote Control (Wireless): Boom, Vacuum Breaker, Throttle & Debris Body (includes Hi -Dump, if applicable). Does not include remote cable pendant controls for boom or hi dump. 1 Back Up Alarm 1 Back Up camera with color monitor, rear camera head 1 50' Capacity Retractable Hand Gun Hose Reel 2 Cone Storage Rack 1 Remote Boom Grease Zerk Assembly (Ground Level - includes water pump drive) 1 Dual Roller Level Wind Guide, plastic (in lieu of single) 1 3/4" x 15' Length Leader Hose 1 Paint: To be advised 1 Omnibus -2 Electronic Controller System -Color Monitor - Omnibus footage counter standard. 1 Chemical Tank (15) Gallons (Grease Control Injection System) 1 LED Boom Mounted Flood Lights 1 LED Rear Mounted Flood Lights I LED Flood Light - Water Pump Work Area Truck Chassis Information Pool Truck Chassis Model Peterbilt 348 6x4 66000GVWR PX -9 345HP 3000RD5 Qty Description 1 2016 PeterBilt 348 /66,000GVWR Machine Total $345,736.25 Delivery $2,525.00 Total$348,261.25 Offered by: JPS _ PRICE INCLUDES: DELIVERY, FACTORY TRAINING, WARRANTY AND CONTRACT FEES COMPLETE September 18, 2015 City of Denton Drew Huffman Mr. Huffman, Quote 2 Brian Grabow South Texas Sales 4101 W. Green Oaks #305 Box 549 Arlington, Tx 76016 g�rne uip.com I am pleased to quote you the following Sewer Equipment Company of America truck combination sewer cleaner Model 900 -ECO with a 12 yd debris body and 1400 gallons of water, mounted on a Freightliner tandem axle chassis. This unit uses pressure water jet and vacuum for the removal of sand, dirt, grease, detergents, other materials normally found in grease traps, storm drains, laterals and sanitary pipes. The 900 -ECO offers the best in class fuel efficiency noise reduction and simple operations for the operators safety. Vacuum System: 4400 CFM Blower 8" Vacuum Hose system 18" Hg vacuum rating Dual Cyclone Separator Dual Element 10 Micron Final Filter Remote Vacuum Relief Variable Volume Delivery Analog Vacuum Display Boom: Hydraulic Powered Boom 180° Working Radius 10' Extendable Design 70 Degree Steel Elbow Water System: 1400 Gallon Capacity Water Tank Triplex Plunger Design Water Pump 55 gpm @ 3000 psi Performance Black DuraproleneTm Water Tanks (Baffled) 2.5" Hydrant Fill system Air Purge Valve Variable Volume Delivery Low Water Warning Light Analog Pressure Display Front and Rear Hand Gun Ports Debris Tank: 12 Cubic Yard Capacity Exten Steel Construction Debris Level Indicator Hydraulic Dump, 50° Dump Angle Dual Ported Rear Door w/ Knife Valve Dump Height 60" Hydraulic Open /Close/Lock Door }U5'.aLLtm & 1ITlm Front Mounted Telescoping & Rotating 700' xl" 10' Leader Hose Single Side Controls Electrical: NEMA 4 Control Panel Hour Meter (blower & water pump) Military Spec Sealed Switches Truck: Freightliner single axle Cummins 370 hp Mounting to Approved Chassis (1) Alum Toolbox 24 "x42 "x102" - Behind Cab (2) Alum Toolbox 18 "x1 8 "x30" - Passenger (2) Alum Toolbox 18 "x1 8 "x24" - Rear Your BuyBoard Price is $ 347,594.00 includes shipping and training. * Please make PO out to Austin Freightler * Quote good until December 31, 2015 Sincerely, Brian Grabow GPM Equipment Solutions (210) 323 -2749 Accessories: (4) 8" x 6' Extension Tubes (1) 8" x 6' Crowned Suction Nozzle (5) Quick Clamps BB Hose Guide Tri -Star (chisel point) nozzle DD (high flow) nozzle Finned Nozzle extension Nozzle Rack 25' Fill Hose Upstream Pulley Guide Washdown gun w/ 25' ext. hose (1) Fan Nozzle (for Washdown Gun) (1) Hydrant Wrench (1) Paper Owner's Manual Options: Digital Smart Counter Central Lube Manifold Fill Hose Rack Hydro - Excavating Kit w/Reel Wash Down System w /Reel Debris Water Wash Out System LED ArrowBoard, Boom Lights LED Strobe and Work Lights Air Purge System Tow Hooks Dukes Root Control System w /Plastic Tank CONTRACT PRICING WORKSHEET Contract IT06-14 Date For MOTOR VEHICLES Only No.: Prep Buying ;'CITY OF DENTON Contractor: ;',RUSH TRUCK CENTER OF TEXAS, LT Agency: Contact r DREW HUFFMAN Prepared [CHARLIE PLOUSE Person: By: Phone: :940-389-5649 Phone: ::(713) 495-6304 Fax: Fax: 1(713) 695-9620 Email: Product K9 Description; :PETERBILT 348 WITH CAMEL 200-P.D. net I te"i1lase Vniff'rice Per Contractor's ft-GAC Contract: kbed! Options - Itemize below - Attach additional shoet(s) if necessary Include Option C�!wje III description I Ibliv,hed (Viow 01v o0owN WIWI, wov 4sibmited and I'liml ID 6mitowtoy"s bid) . . ....... . .................................................................... Description Cost Description FOR SCO I - 12 #13023 FROM AGE 3 $ 232,789.00 P Quote 3 9/18/201 97,068.00 Cost Quantity Ordered: 11 it Description Truck Centers of Texas, L.P. Discount ,C FEE DISCOUNT wr Allowances / Discomuts (A+13+i'' $ (41,36038)�- $ (1,500.00)' $ 95 DAYS ARO 111F- Subtotal F: 1 $ (42,86038' $ 362,508.00 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 1 OF 13 PAGES CITY OF DENTON PETERBILT COMPUTATIONS: PETERBILT 348 CHASSIS: [CHASSIS WITH CAMEL] OPTIONS CALCULATIONS: September 18, 2015 COMPLETE CHASSIS LIST PRICE: [SEE CHASSIS SPEC] $ 169,206.00 CHASSIS LIST: $ 99,351.00 CHASSIS OPTIONS LIST: $ 69,855.00 LIST $ 69,855.00 9146 $ 63,889.38 PETERBILT CHASSIS OPTIONS LISTING RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 2 OF 13 PAGES (cop Rush Truck Center - Houston H600 DENTON, CITY OF 10200 N Loop East 901 TEXAS STREET Houston, Texas United States 77029 DENTON, Texas United States 76209 Phone: (713) 495 -6304 Phone: (940) 389 -5649 Fax: (713) 695 -9620 Fax: Email: Contact Email: drew.huffman @cityofdenton.com Prepared for: DREW HUFFMAN Vehicle Summary Unit Model: Model 348 Type: Full Truck Description: CHASSIS FOR CAMEL 66000 200 -P.D. Application Class A (Highway) Intended Serv,: Tanker, Liquid Bulk Commodity: Other Commodity Body Class D (Off -Road) Type: Vacuum Length (ft): 20 Height (ft): 8.5 Max Laden Weight (Ibs): 11000 Trailer Cab to Axle (in): No. of Trailer Axles. 0 Type: Overall Comb. Length Length (ft): 0 Height (ft): 0.0 Kingpin Inset (in): 0 Corner Radius (in): 0 Restrictions Length (ft): 65 Width (in): 102 Height (ft): 13.5 Approved by: Chassis Fr Axle Load (Ibs): 20000 Rr Axle Load (Ibs) 46000 G.C.W. (Ibs): 66000 Road Conditions: Class A (Highway) 100 Class B (Hwy /Mtn) 0 Class C (Off -Hwy) 0 Class D (Off -Road) 0 Maximum Grade: 6 Wheelbase (in): 261 Overhang (in): 52 Fr Axle to BOC (in): 72.2 Cab to Axle (in): 188.8 Cab to EOF (in): 240.8 Overall Comb. Length 351 (in): Special Req. United States Registry Date: Note: All sales are F.O.B. designated plant of manufacture. Ask your dealer for a quote today, or visit our website @ yyyw gar fin pan a e on'l. NANCW] PACCAR Financial offers innovative finance, lease and insurance programs customized to meet your needs. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: 000160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 4 OF 13 PAGES 62095 -F28F -0238 Page 1 of 10 Rush Truck Center - Houston H600 10200 N Loop East DENTON, CITY OF 901 TEXAS STREET ( am pu � Houston, Texas United States 77029 DENTON, Texas United States 76209 536 Phone: (713) 495 -6304 Phone: (940) 389 -5649 Fax: Section Modulus: 17.8 cubic inches. Weight: 1.74 Ibs /inch pair (713) 695 -9620 Fax: 0601500 O Email: 1,230 651 Contact Email: drew.huffman @cityofdenton.com 22.4 in Front Frame Extension for Hose 8,965 355 Prepared for: DREW HUFFMAN Reel Application Data Code 0612230 Description $ List Weight Base Model Engineering approval may be required. 0003481 O Model 348 0 99 „351 10,660 0091200 O Other Commodity 0 0 0 0093020 O Tanker, Liquid Bulk 0651090 0 0 0 0 General freight (linehaul) service using a liquid bulk tanker body or tanker trailer. 0095130 O Vacuum 0 0 0098170 O United States Registry 0 0 Configuration 0200700 O Not Applicable 0 0 Secondary Manufacturer Frame & Equipment 0514000 O 10 -3 /4in Steel Rails To 354in 624 536 10.75x3.5x.375 Dimension, 2,136,000 RBM; Yield Strength: 120,000 psi. Section Modulus: 17.8 cubic inches. Weight: 1.74 Ibs /inch pair 0601500 O Full Steel Inner Liner 1,230 651 0602001 U 22.4 in Front Frame Extension for Hose 8,965 355 Reel Application 0612230 O Custom Wheelbase or Overhang 350 0 Engineering approval may be required. 0613090 S Three -Piece Crossmembers 0 0 0644090 S EOF Square without Xmbr 0 0 For use with body builder installed crossmember. 0651090 S Omit Rear Mudflaps and Hangers 0 0 Front Axle & Equipment 1011360 O Dana Spicer D2000F 20,000 lb, 3.5in Drop 1,485 445 Factory front axle alignment to improve handling & reduce tire wear. Zerk fittings on tie rod ends, king pins, & draglink ball joints for ease of maintenance & help extend service life of components. Cognis EMGARD® FE 75W -90 synthetic axle lube provides over 1 % fuel economy improvement. Reduces wear & extends maintenance intervals, resulting in increased uptime. Provides improved fluid flow to protect components in extreme cold conditions & withstand the stress from high temperatures, extending component life. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: Q00160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 5 OF 13 PAGES 62095 -F28F -0238 Page 2 of 10 <M- Data Code Description $ List Weight 1114030 O Taper Leaf Springs, Shocks 20,000 lb 1,308 0 oil drain plug captures & holds any metal fragments in drive axle lube to Standard with Heavy Resistance Shocks. extend service life. Parking brakes on all drive axles for optimal 1243050 O Power Steering Sheppard HD94 Dual 792 0 For use with 16,000 to 20,000 lb. axle ratings. 1250250 O Power Steering Reservoir Frame Mounted w /Cooler 154 2 1353550 O PHP10 Aluminum Preset PLUS Hubs Air Disc 926 0 0 0 1672630 O Use with Front Axle 2,152 60 1380290 O Air Disc Front Brakes 62 0 1680450 O Rear Brake Camshaft Reinforcement Complies with reduced stopping distance regulations. 1680460 O Heavy Wall, Drive Axle(s) 1391410 O Gusseted Cam Brackets, Steer Axle 24 0 1392970 O Heavy Duty CAM Bushings, Steer Axle 26 0 Rear Axle & Equipment 1523340 O Dana Spicer D46 -170 46,000 lb 10,681 2,525 Interaxle diff lock air rocker occupies space of one gauge. Laser factory axle alignment to improve handling & reduce tire wear. Magnetic rear axle oil drain plug captures & holds any metal fragments in drive axle lube to extend service life. Parking brakes on all drive axles for optimal performance. Cognis EMGARD® FE 75W -90 synthetic axle lube provides over 1 % fuel economy improvement. Reduces wear & extends maintenance intervals, resulting in increased uptime. Provides improved fluid flow to protect components in extreme cold conditions & withstand the stress from high temperatures, extending component life. 1616290 O PHP10 Aluminum Preset PLUS Hubs 368 0 1631310 S Parking Brakes (Axle Package) 0 0 1672630 O Diff Lock Both Axles 2,152 60 (Air Rocker Switch occupies the space of one gauge) 1680030 O Veeder Root Hubodometer, Miles 71 0 1680450 O Rear Brake Camshaft Reinforcement 91 9 1680460 O Heavy Wall, Drive Axle(s) 275 88 1680470 O Lube Pump, Drive Axle(s) 274 36 1680480 O Wide Track, Single & Tandem Drive Axle(s) 707 29 Rear width may exceed 102 inches. Verify operating restrictions and body installation. 1680490 O Gusseted Cam Brackets, Drive Axle(s) 24 2 1680500 S SBM Valve 0 0 Full trucks require a spring brake modulation (SBM) system for emergency braking application. This system requires an SBM valve and a relay valve with spring brakes on the rear axles. The SBM valve allows the foot valve to operate the rear axle spring brakes if a failure exists in the rear air system. 1680950 S Stability System Not Selected or Not Available 0 0 1682710 O Anti -Lock Braking System (ABS) 6S6M 331 35 ABS -6. Includes air braking system. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: 000160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 6 OF 13 PAGES 62095 -F28F -0238 Page 3 of 10 <a—/ Data Code Description $ List 1684200 S Synthetic Axle Lubricant All Axles 0 Peterbilt heavy duty models include Fuel Efficient Cognis EMGARD FE75W -90 which provides customers performance advantages over current synthetic lubricants with reduced gear wear and extended maintenance intervals, resulting in increased uptime. In addition, the lubricant provides improved fluid flow to protect gears in extreme cold conditions and withstand the stress from high temperatures, extending component life. 1687040 O Air Disc Rear Brakes, Tandem Drive Axle 4,150 Inc automatic slack adjusters. 1687348 O Tandem Drive Axle (Model 348) 0 1688110 O Heavy Duty CAM Bushings, Drive Axle(s) 53 1704780 O Ratio 4.78 Rear Axle 0 1824240 O Hendrickson Haulmaax HMX460 46,000 lb, 54in Axle 3,828 Spacing, 60K Creep Rating 1921470 O Shock Absorbers For HMX Suspension 368 Engine & Equipment 2058509 O PACCAR PX -9 370 @1900 GOV @2100 1250 @1400 8,164 (2013 Emissions) Includes aluminum flywheel housing. Chevron Delo LE SAE 1OW30 engine oil is specially formulated for new low emissions engines. Magnetic engine oil drain plug captures and holds any metal fragments in engine oil to extend service life. N21320 N205 120..Standard Maximum Speed Limit [LSL] N21330 N207 0 .... Expiration Distance N21340 P005 120..Hard Maximum Speed Limit N21350 P001 64 ... Maximum Accelerator Pedal Vehicle Speed N21360 P110 0 .... Accelerator Lower Droop N21370 P059 64 ... Maximum Cruise Speed N21380 P111 0 .... Cruise Control Lower Droop N21400 N203 252..Reserve Speed Function Reset Distance N21410 N202 0 .... Maximum Cycle Distance N21420 N206 10 ... Maximum Active Distance N21430 N201 0 .... Reserve Speed Limit Offset N21440 P015 Yes..Engine Protection Shutdown N21450 P026 No ... Gear Down Protection N21460 P046 1400.Max PTO Speed N21470 P062 No ... Cruise Control Auto Resume N21480 P068 No ... Auto Engine Brake in Cruise N21500 N209 0 .... Expiration Distance N21510 P520 Yes..Enable Idle Shutdown Park Brake Set N21520 P030 5 .... Timer Setting N21530 P233 Yes..Enable Impending Shutdown Warning N21540 P234 60 ... Timer For Impending Shutdown Warning N21550 P516 35 ... Engine Load Threshold N21570 P031 No ... Idle Shutdown Manual Overrule N21590 P230 Yes..Enable Hot Ambient Automatic Overrule N21610 P172 40 ... Low Ambient Temperature Threshold N21620 P173 60 ... Intermediate Ambient Temperature Threshold N21630 P171 80 ... High Ambient Temperature Threshold Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Effective Date: Jul 1, 2015 Prepared by: Administrator RUSH TRUCK CENTERS OF TEXAS, L.P. 62095 -F28F -0238 Model Number: Quote /DTPO /CO: Version Number: Weight 0 0 0 593 30 0 Model 348 Q00160494 31.10 PAGE 7 OF 13 PAGES Page 4 of 10 Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: 000160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 8 OF 13 PAGES 62095 -F28F -0238 Page 5 of 10 4 =1; I VOO Data Code Description $ List Weight 2091310 O Engine Idle Shutdown Timer Disabled 0 0 2091315 O Enable EIST Ambient Temp Overrule 0 0 2091372 O Eff EIST NA Expiration Miles 0 0 2091640 O Effective VSL Setting NA 0 0 2140150 O Remote PTO And Throttle Provision 18 0 2140200 O CARB Engine Idling Compliance 0 0 PACCAR PX -7, PX -9 and MX, Cummins ISL, ISM and ISX diesel engines will include the required factory installed serialized sticker on the drivers door to identify them as meeting the NOx idling standard. 2140320 O Remote Throttle Control Provision 77 4 Control Switch & Wiring EOF Only 2511400 O 160 Amp Alternator, 36 SI Brushless 446 0 2522050 S PACCAR 12V Starter 0 0 2535040 O 3 Optima DT31T Batteries 2700 CCA Threaded 779 55 Stud type terminal. AGM (Absorbent Glass Material). Stranded copper battery cables are double aught (00) or larger to reduce resistance. 2539090 O Big Switch Battery Disconnect 201 4 Mounted on Battery Box 2539410 O Battery Jumper Terminal Mounted Under Hood 98 4 LH Frame Rail. Not available with PX -7 engines. 2539480 O Batteries In LH BOC Box 0 0 2621000 O 2 -Speed Fan Clutch For Frequent Start/Stops 338 0 2723210 S 18.7 CFM Air Compressor 0 0 Furnished on engine. Teflon lined stainless steel braided compressor discharge line. 2922780 O Spin -On Fuel FilterlWater Separator, 12V Heated 78 0 Frame Mounted. In addition to the fuel filter supplied with the engine. Includes fuel water separator on Models 330, 337, and 348. 3010400 O Engine Protection Shutdown 5 0 Includes oil pressure, oil temperature, coolant temperature, and intake manifold temperature. 3114270 S High Efficiency Cooling System 0 0 Silicone radiator & heater hoses enhance value, durability, & reliability. Constant tension band clamps reduce leaks. ClimaTech extended life coolant extends maintenance intervals which reduces maintenance costs. Anti - freeze effective to -30 degrees F helps protect the engine. Low coolant level sensor warns of low coolant condition to prevent engine damage. Radiator Size by Model: 587: 1330 sq in, 579/367 FEPTO 1325 sq in, 567/365/367: 1440 sq in, 384/386: 1301 sq in, 382/365 FEPTO: 1184 sq in, 389/367 HH: 1669 sq in, 348: 1000 sq in. 3211120 S Radial Seal, Dry Type Air Cleaner, Frontal 0 0 Air Intake. Molded rubber air intake connections with lined stainless steel clamps seal to prevent contaminants in air intake. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: 000160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 8 OF 13 PAGES 62095 -F28F -0238 Page 5 of 10 Qw_ Data Code Description $ List Weight 3365040 S Exhaust Single RH Side Of Cab 0 0 DPF /SCR RH under cab. Includes cab entry RH under cab and full round stainless steel exhaust guard. 3381770 O Curved Tip Standpipe(s) 43 0 3387870 S 24in Ht, Sin Dia Chrome, Clear Coat Standpipe(s) 0 0 Transmission & Equipment 4052110 O Allison 3000 RDS -P Transmission, Gen 5 9,960 110 Rugged Duty Series. Includes Rear Transmission Support, TranSynd Automatic Transmission Fluid, and Water Oil Heat Exchange. Also includes features that monitor the transmission fluid, filter and clutch condition. Will display percent life remaining for the transmission fluid, filter and clutches on the shift selector. This information may be displayed using the Mode and Up and Down buttons. A wrench icon will also be included to indicate when the transmission fluid, filter or clutches need servicing. (Suited for vehicles operating on /off highway and /or requiring PTO operation) Forward Ratios: 1st -3.49, 2nd -1.86, 3rd -1.41, 4th -1.00, 5th - 0.75, 6th -0.65 / Reverse Ratios: DR- (5.03) 4210940 O SPL100 Driveline, 2 Midship Bearings 343 -15 4216330 O SPL170 -XL Interaxle Driveline 224 45 For tandem rear axles 4250720 O Allison FuelSense Not Desired 0 0 4256470 O Allison MD /HD /RDS 4th Gear Lockup AJ 298 0 Allison Vocation Package 150. Split Shaft PTO Pumper/Vacuum except Fire Truck Pumper. 4256630 O Allison 5 -Speed Configuration, Close Ratio Gears 0 0 Allison 3000 Transmission Only 4256920 O Dash Mounted Push Button Shifter 622 0 Air & Trailer Equipment 4510760 O Bendix AD -IS EP Air Dryer with Heater 102 39 Extended Purge (for use with higher air consumption applications). An integrated system air dryer that incorporates the functions of the air dryer, purge reservoir (which increases the drying capacity), wet air tank, pressure relief valve, single check valves, and pressure protection valve for air susp and other air accessories. Includes easy -to- service spin -on dessicant cartridge. 4520420 O Berg Pull Cord Drain Valve(s) - All Air Tanks 6 0 4540420 S Nylon Chassis Hose 0 0 4543330 O Polished Aluminum Air Tanks Outside Frame Rails 334 0 Exposed air tanks outside the frame rails will be polished aluminum. Air tanks mounted inside the frame rails or covered by other components will be either painted aluminum (4543340) or painted steel (4543320) air tanks depending on air tank option selected. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: 000160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 9 OF 13 PAGES 62095 -F28F -0238 Page 6 of 10 1=1 , DO Data Code Description $ List Weight 4543340 O Aluminum Painted Air Tanks 216 -45 All air tanks are aluminum with painted finish except when Code 4543330 Polish Aluminum Air Tanks is also selected (then exposed air tanks outside the frame rails will be polished aluminum). Peterbilt will determine the optimal size and location of required air tanks. Narratives requesting a specific air tank size or location will not be accepted for factory installation. See ECAT to determine number or location of air tanks installed. 4544020 O Coalescing Filter For Use With AD -IS and AD -IS -EP 57 0 4611930 O Body Connections 5ft BOC 132 4 Junction Box contains light and power circuits for Body Connections located 5ft from BOC. Tires & Wheels 5068590 O FF: BR 20ply 315/80R22.5 M860A 628 92 Diameter = 42.8 inches; SLR = 19.9 inches 5167320 O RR: BR 16ply 11 R22.5 M843 1,872 192 Diameter = 42.5 inches; SLR = 19.9 inches 5190008 O Code -rear Tire Qty 08 0 0 5220250 O FF: Alcoa 893657 LVL1 22.5X9.00 Alum Wheel 474 -38 Pilot Mount 5310610 O RR: Accur Steel Armor 50344PK 22.5X8.25 284 88 Heavy Duty, 5 Hand Holes 5390008 O Code -rear Rim Qty 08 0 0 Fuel Tanks 5554070 O 26in Aluminum 60 Gallon Fuel Tank LH U/C 173 9 Includes steps for cab access. Paddle handle filler cap with threadless filler neck. Top draw fuel plumbing reduces chance of introducing air into the fuel system during low fuel level conditions due to the central placement of fuel pickup tube. Wire braid fuel lines increase durability & reduce potential for leaks. 5602060 O Location LH U/C 60 Gallon 0 0 5652890 O DEF Tank Mounted LH BOC 0 0 Models 210, 220 and 320 mounted LH cab fender. 5652990 O Standard DEF To Fuel Ratio 2:1 Or Greater 0 0 5655019 S DEF Tank Small 0 0 Battery Box & Bumper 6010670 O Aluminum Space Saver Battery Box LH BOC 166 -84 Battery Access From Side 6030150 O Rubber Battery Pad In Bottom Of (1) Battery Box 13 2 (Mat in box that holds batteries only) 6040550 S Aftertreatment RH U/C Alum Non -Slip Cab Entry 0 0 Step. DPF /SCR for diesel engines, catalyst for natural gas engines. On Models 579 specifying chassis fairings, the box will be aerodynamic. 6113050 O Aluminum Channel Bumper Stainless Steel Clad 594 -4 Two Tow Pins Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: Q00160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 10 OF 13 PAGES 62095 -F28F -0238 Page 7 of 10 4 1 11=0 , 20 Data Code Description $ List Weight Cab & Equipment 6515640 O Alum Cab 110in BBC Metton Hood 571 0 With bright finish crown. Includes view window RH door and convex mirror over RH door. 6540120 O Severe Service Cab Package #1 101 39 Includes Aluminum side skins, aluminum rear skin, steel windshield mask, steel firewall, and steel front floor sheet on all cabs, and additional reinforcement structure on the back wall of the day cab. 6800360 O Rubber Fender Lips 2 Inch Wide 94 8 6911700 S Peterbilt UltraRide Driver Seat 0 0 6921700 S Peterbilt UltraRide Passenger Seat 0 0 6939400 S Air Ride Driver 0 0 6939420 S High Back Driver 0 0 6939470 S Vinyl Driver 0 0 6939500 O Air Ride Passenger 201 0 6939520 S High Back Passenger 0 0 6939570 S Vinyl Passenger 0 0 7001520 O Adjustable Steering Column - TIIt/Telescope 119 11 7001620 S Steering Wheel with Peterbilt Logo 0 0 Steering Wheel with embossed Peterbilt logo over horn button. 7036120 S Interior Grey /Black 0 0 Includes rugged charcoal instrument panels, glare- resistant gray dash, black bezels on gauges, (2) power ports, monochromatic molded door pads with durable in -mold color, gray molded back wall, 18 inch 4 -spoke soft -touch steering wheel, soft -touch steering column cover, power lift passenger window, extruded rubber floor covering, header - mounted dome light, foot well lighting, integrated "dead pedal', (4) inside entry grab handles, (2) inside sunvisors, (2) coat hooks, (2) cup holders and map bin in dash. 7210430 O Extended Rear Window ipo Std Window -Day Cab 68 0 The extended rear window protrudes two inches more than the standard conventional rear cab window. Take this into consideration when determining your loadspace. 7210540 S Day Cab Rear Window 0 0 7230060 S One Piece Curved Windshield 0 0 7322010 S Combo Fresh Air Heater /Air Conditioner 0 0 With radiator mounted condenser, dedicated side window defrosters, Bi- Level Heater /Defroster Controls, 54,500 BTU /HR, and silicone heater hoses. 7330700 O Peterbilt Comfort Control - Cab 29 6 7410040 O Outside Sunvisor - Stainless Steel 132 4 Available for Day Cab and Low Roof Sleeper. Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: Q00160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 11 OF 13 PAGES 62095 -F28F -0238 Page 8 of 10 4 r =n 1 00 Data Code Description $ List Weight 7560100 O Mirrors SSTL Each Side Heated and Motorized 368 2 with Switch on Door. Right Click on option to See Picture in Product Portfolio. 7560850 O (2) Convex 8 Inch SS Mirror 184 4 Center mounted under mirror bracket. If rear view mirrors are heated, the convex mirrors will be heated. Option includes dual door stops. 7564110 O Power Package 290 0 Includes power door locks and power windows. 7610470 O (1) Air Horn 24.5in Chrome - Round w /Horn Shield 221 8 7630040 O Mount Air Horn Logger Style - RH 22 2 7725710 O Standard Speaker Package For Cab 41 4 (2) Speakers 7725715 O ConcertClass Without CD, Includes BT Phone and 323 10 Audio, AM /FM, WB, USB and MP3. 7782230 O Radio Antenna Mounted Logger Style 57 0 Antenna Mounted LH on BOC In Place of Center Roof position on Conventional Models. Models 579 and 567 Antenna Mounted LH Roof In Place Of Center Roof position. 7850210 O Plug -In Auto Reset Circuit Breaker 32 0 in place of fuses in junction box. 7851480 S Peterbilt Electric Windshield Wipers 0 0 With Intermittent Feature. 7851970 O Unibilt Cab Air Suspension 455 25 Includes dual air bag suspension, leveling valve, and tracking rod. 7900090 O Triangle Reflector Kit Shipped Loose 17 13 7900270 O 5 lb 3A:40bc Fire Extinguisher Cab Mounted 85 8 7901130 O Backup Alarm (107dB) 56 3 8021380 S Air Restriction Indicator 0 0 Mounted on air cleaner or intake piping. 8071870 S Main Instrumentation Panel, Graphics Display 0 0 Includes speedometer with tripodometer, tachometer with hourmeter and outside air temperature display, voltmeter, engine oil pressure, engine coolant temperature, fuel level, primary and secondary air pressure gauges. Includes standard warning light package: high water temperature, low oil pressure, and low air pressure warning lights w /audible alarms, high beam, turn signal, low fuel, parking brake, and ice warning indicators; seat belt reminder; rocker switches with long -life LED indicators; multi- function turn stalk with flash -to -pass feature (night mode flashes headlights and marker lights; day mode flashes headlights only), intermittent windshield wiper and headlamp beam control. Hydraulic braked trucks do not include air pressure gauges. 8075690 O Dual Output Sensors For Road & Engine Speed 62 0 Terminals routed to BOC /Front of Sleeper 8111110 S Headlights Composite Fender Mounted 0 0 Integral Park, Turn, and Side Marker Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed In PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: Q00160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 12 OF 13 PAGES 62095 -F28F -0238 Page 9 of 10 Data Code Description 8120980 S (5) Marker Lights, Aero LED Light Emitting Diodes 8133960 O Daytime Running Lights (Required on Canadian units) 8140350 O LED Stop /Turn /Tail 40204 Backup, bracket mounted LH /RH EOF 8140490 O Additional LED Round Turn Signal Mirror Mounted Paint 8500710 O Standard Paint Color Selection 8530770 O (1) Color Axalta Two Stage - Cab /Hood Base Coat/Clear Coat N85020 A - L0006EB WHITE - Stand N85400 HOOD TOP L0006EB WHITE - Stand N85500 CAB ROOF L0006EB WHITE - Stand N85200 FRAME N0001 EA BLACK N85300 FENDER L0006EB WHITE - Stand Options Not Subject To Discount <10, ;0 $ List Weight 0 0 72 0 60 2 170 2 -200 161 9408905 O Medium Duty Emissions Surcharge 0 9408982 O Vehicle Layout 1,000 Option is not subject to discount. Fleets will be split prior to build so that the charge is applied to only one unit. Quotes will not reflect this. Miscellaneous 9409960 O Presentation Created Using Featured Spec 0 For Model Total Adjusted Price (W /O Freight & Warranty & Surcharges) Freight Charge Options Not Subject to Discount Surcharges Not subject to Discount Total Weight Prices and Specifications Subject to Change Without Notice. x $169,206 $2,100 $1,000 $0 16669 Unpublished options may require review /approval. Dimensional and performance data for unpublished options may vary from that displayed in PROSPECTOR. Printed: 9/18/2015 8:03:14 PM Complete Model Number: Model 348 Effective Date: Jul 1, 2015 Quote /DTPO /CO: Q00160494 Prepared by: Administrator Version Number: 31.10 RUSH TRUCK CENTERS OF TEXAS, L.P. PAGE 13 OF 13 PAGES 62095 -F28F -0238 Page 10 of 10 O 7- V) F- 0 7- w 0 U- z 0 U0 CL 7 0 U W D Ol IN mom I Lfi N 0 z E 0 LL C CD In C) r" I- 0 4A- 4-J _0 0 E Ln 4d)- u C: V) :3 > 0 4-J L- C: 0) 0) In 70 0 0- i7 Ln 0- CL CD @) 0) C) 06 c) C) C) CD X CD ,I- C) 2 OL r, 4-J CIZ W :5 E co 4A- C) CO < C9 CD 0 m 0) (U 0) C) -2 ro co r Fr 1 1 n N I- in CD O C� In C) CD C) n a; co N M M r*l 0 M CD 0 CD 0 4A- E iA- Ln 4 d)- LU Ln a) V) Ln E u = ° C) :3 u 0 :3 LA Ln Lfi Ln Ln M 0- C) _0 CD C) -0 ON CD 6 a) ro 0 O Ian L Lf1 Ln :3 -2 UJ E= C) C) E ro 4A- l0 m 0 -0 co 1 0 N 0) m CD 0 � C) pu'41 I- N rr) 00 CD _0 CD CD 0 C) CD (1) m 0 CD E cc� CD CD 00 C) a) u I C: 00 C) U ru c: ra ro > cD 0 Ln >, 4A- M V) iA- CD U') a) C: (U :!Ll .4.1 C: :3 CL (U U 0 C) Lr) U) U') Ln U) C) Ln C) 0- C) cn _0 C) -0 C) ID :3 Ln U-) ro r4 Ln -2 Y 0 rf) U-) _0 Ln :3 :3 � cu 0 E 'l- E C) ro 0 -0 : �, CD U) N V) CD =3 Cl) Z Lf) C) V) Lli 0 C) U 0 u Lli �E < LU 0 < co =) Z) 0 m u u) 0' z I _j E 0 LL C Quote 1 . . . .... . ... ....... . .. - " C1 .. � �� Inc . mlWl Authorized Dealer/ Service Center: CLS Equipment Co.,Inc. 7265. Sherman Street Richardson, Texas 75081 972- 479 -1335 Office DATE September 4, 2015 Customer: City of Denton, TX WaterA/Vastewater t7 " O17L Proposal Field Operations Rush Truck Center Contract //430 13 New 2015 Isuzu W5500 / John Bean Sewer Cleaner Qty Cat. No. Description 5284762 SJS704030, 700 Gallon, 40 gpm @ 3000 psi, 99 HP Kubota Diesel Tier III, Bean Pump, truck mounted 12 -5874 Dual rotating hose reel, sealed HD bearing d 16 -2483 600'x 3/4" hose - 3000 psi tl 16 -0670 Leader hose - 3/4" x 10' long R 16 -2088 600'x 1/2" hose - 4000 psi d 16 -1781 Leader hose - 1/2" x 10' long 1 5253228 Model 785 gun (800 psi max) N 12 -3796 25'x 1/2" washdown hose h 16 -2347 Self retracting hose reel (does not include hose) d 12 -3797 Reel mount kit for 700 gallon w / reel 16 -2347 N 12 -4948 LED Arrow stick assembly N 9 -9999 Truck mounting charge 1 12 -1703 Belt drive guard (Kubota) 1 16 -4583 Accessories Tool box - top mount on fender 6' black 2 12 -4733 Open tool box 14" x 78 "(exp. metal) w/o door 2 12 -4381 Tool box under mount 18" x 36" black 1 ISIIZU 2010 lSPUZU 1x05500 i1aeseV1 10,110010 I!1 Total $ 137,800.00 In _I uded Ne 7lec: 1) %" Hi Flow Nozzle 2) %1' Tadpole Nozzle 3) %" Ultimate Penetrator Nozzle 4) %11 & %1' TrlStar Nozzle 5) %11 & %1' Super Grenade Nozzle 6) %" Grease Nozzle 7) '/i ' Ice Nozzle 8) ' /a'' Radial Vortex Vnrluded E ul ° iyukat: 1) ENGINE ELECTRONIC CLUTCH 2) EMERGENCY KILL SWITCH 3) 2- STANDARD NOZZLES 4) DIGITAL ENGINE GAUGES 5) MURPHY SHUT DOWN SYSTEM 6) TIGER TAILS 7) 5 YEAR TANK WARRANTY 8) 10 GALLON GREASE CONTROL INJECTION SYSTEM 9) Electronic Footage Counter' /." Reel (Installed) 10) Electronic Footage Counter' /z" Reel (Installed) FREIGHT: INCLUDED Paint : Body Painted Denton Blue TOTAL: $ 137,800.00 Complete Unit FACTORY QUOTE VALID: 60 Days Prepared by: Durand - Wayland, INC. TEL - 972-479-1335 JPS P.O. Box 1404 LaGrange, GA 30241-0119 Fax - 972-479-1336 www.durand-wayland.com 4104 W. Green Oaks #305 Box 549 Arlington, Texas 76016 817- 360 -3124 Bill To: Drew Huffman City of Denton 901 -A Texas Street Denton, Texas 76209 940 - 349 -8489 «� Drain valves for water pump Quote 2 P' � »» C I% I' �ff0 41 ' ✓J;,, �r �� Jf . 11,,, ,,,,,,o'! III`i DATE October 5, 2015 Quotation # Dual Reel 747 Customer ID Quotation valid until: January 3, 2016 Prepared by: Terry Malloy 817- 313 -0351 tr ,g1JL) " 9,pii1 unt a ka °b Description I AMOUNT Upgrade to Dual Reel System - Rt Reel - 3/4" hose, Lt Reel 1/2" hose 600' of 3/4" hose, 500' of 1/2" hose Footage meters (2) for left and right reels Fill hose storage rack Cone rack with 6 DOT safety cones, Lighting - LED Flood light, LED rotating beacon, LED arrowstick Aux fuel tank for mounting on Isuzu chassis Tool storage - Dual aluminum under -deck boxes, full length open storage - above deck Degreaser Injection Kit (Duke's), plumbed, wired Nozzle Pkg 1/2 ": Tri -Star, Dual Degree, Wiesel, Mini - Missile Nozzle Pkg 3/4 ": Tri -Star, Dual Degree, WartHog, Torpedo, HW, Destroyer Total for 747 truck body, options, accessories. Add to chassis total. TOTAL I $ 83,469.00 Delivery, warranty, and on -site training included. If you have questions concerning this quotation, contact Terry Malloy 817 - 313 -0351, tmalloy @gpmequip.com Quoted in conjuction with Rush Truck Center, BuyBoard Isuzu dealer. THANK YOU FOR YOUR BUSINESS! TEXAS LOCAL GOVERNMENT PURCHASING COOPERATIVE BUYBOARD Vendor R11SH TWICK CENTER Date Prepared Contact for Vendor DREWNE, 11BA 11TR Phone 830-626-5254 End User Contact: DrewHuffman Phone/Fax 9,10-319-8200 A: Base Price in Bid/Proposal Number: 430-13 1 Series: NRIR Subtotal Column 1:1 $0.00 Unpublished = Subtotal Column 21 * - , Unpublished Options added to Base price (Subtotal "Col I + Col 2'), $ E Contract Ph RTC1060 Flooring $ 865.00 RTC0051 Rush Care Package $ 1,236.00 Rwio.59 Lot Insurance $ 548.00 RTC0125 Body Prep 3,42 1, M Subtotal Column 1:1 $ 9,524.00 Subtotal Column 21 $ 1,413.00 Publ ished Options added to Base Price(Sublotal of "(.' o/ I " & "C'W 2") $ 10,937700-1 Subtotal Column 1:1 $0.00 Unpublished = Subtotal Column 21 * - , Unpublished Options added to Base price (Subtotal "Col I + Col 2'), $ E Contract Ph [K-BUYBOARD Administrative Fee % April 2008 Confidential PipeHunter Quote E X I� o�IE A� S 4710 Don Drive Dallas, TX, 75247 Quote Date: August 30, 2015 Customer: City of Denton Contact: Drew Huffman 901 A Texas St. Denton, TX 76029 940 - 349 -8400 Work 940 - 389 -5649 Mobile Quote 3 Version 1 866 - 912 -7510 Due Date: 60 -90 Days from Receipt of Chassis Salesman: Paul Folker 817.505.5307 Cell 11��r;�kaarf��a�gata)�ati�(a�r ,r�rarr�'� 7934TM Truck Mount - 3,000 PSI @ 40 GPM 11 1 Q, "I Ij ... (.. d WATER TANK 700 Gallon High- Density Polyethylene 19500 GVW t Std„ Std. 9000 -0103P Single Filler Asssmbi,y 11 Std. Std. 9000 -0106 25' Fill Hose w Storage Rack 1 Std. Std. 9000 -0118 2" Aux. Drain Valve- Street Side Rear 1' $ 250.00 $ 250.00 BAFFLEBALL Baffle Balls 1 $ 500.00 $ 500.00 9000 -0032P Main Tank Water Sight Guage(1)Std 1 $ 175.00 $ WATER PUMP 9000 -0079 3,000 PSI @ 40 GPM Giant Water Pump 1 Std. Std. 9000 - 0059 A4 Purge 1 $ 185.00 $ 185.00 9000 -0058 Winter recirculation 9 $ 295.00 $ 295.00 9000 -0040 Washdown System -+1311 with gun and 25ft hose l Std. Std. 9000 -0061 Multi -Flow Valve 1 $ 295.00 $ 295.00 9000 -0026 25' Retractable Hand Gun Reel w 25'x 1/2" hose 1 $ 1,450.00 $ 1,450.00 ENGINE ... CAT Diesel 91 HP w/ Clutch 1, Std, Std. 9000 -0048 Safety Lanyard (1) Emergency Kill 1 Std. Std. Fuel Tank Chassis 1 Std. Std. 9000.0064 Electric Throttle 1 Std. Std. Digital Gauge Package & Tachometer Low Pressure High Temp Shutdown 1 Std. Std. 9000 -0045 Engine Shroud/ Belt Guard/ Aluminum 1 Std. Std. HOSE REEL Dual Jet Nose Reel 800' x 112" & 800 x 3/4" Jet Hose Reel 1 $ 4,000.00 $ 4,000.00 Articulating Aeal IMMplloll Articaulaiing Reel Optlon Hydraulic Powered Articulalion Worm Goat 1 $ 4,200.00 $ 4 „200.00 Hose Rash Accessories Standard Level Wind 1/2” 1 Std. Std. Double Roller Levelwiald 45 Degree 3/4 " $ 295.00 $ 295.00 Digital Footage Counter -1/2" Reel 1 $ 3,500.00 $ 3,500.00 Digital Footage Counter - 3/4" Reel f $ 3,500.00 $ 3,500.00 HOSE OPTIONS (per foot) Minimum 400 foot Jet hose with 10 foot leader - 400, 600,800 Increments 3009 -4522 Leader hose 3/4" -per foot 10 $ 10.00 $ 100.00 4625- 12 -XXX 3/4" Jet Hose per foot Pirahana Only 600 $ 2.77 $ 1,662.00 3009 -4537P 1/2" Leader hose- -leer foot 10 $ 10.00 $ 100.00 4640- 08 -XXX 1/2" Jet Hose per foot Pirahana Only 600 $ 2.66 $ 1,596.00 3007 -7000 3" Tiger Tail(1)Std 1 $ 55.00 2" Tiger Tall(1)Std _ ... t $ 55.00 NOZZLE OPTIONS - Std. Hose Reel Nozzles _ Nozzle Rack(1) 3/4" 1 Std, Std. 15 Degree Nozzle(1) 3/4" 1 Std. Std. 30 Degree Nozzle(1) 3/4" 1 Std. Std. Nozzle Skid Assy 6 "(1)314" i _ Std. Std. Nozzle Rack(1) 112" 1 15 Degree Nozzle(1) 1/2" -_ 1 30 Degree Nozzle(1)1 /2" 1 3/4" Red Dawg Nozzle Kit: (Includes Below Nozzles) 1 $ 2,170.00 $ 2 „170.00 (2.3” Diameter 6-Jet Red Dawg (Climbing Nozzle), 2.9" Diameter 12-Jet Red Dawg (Flusher Nozzle), 2.3" Diameter Chisel Dawg, 3/4" Rotator, Mud Dawg Floor Cleaner) 1/2" Red Dawg Nozzle Kit: (Includes Below Nozzles) 1 $ 1,415.00 $ 1,415.00 PipeHunter, Inc. 1617 Garden Road, Peadand, TX 77581 DENTON 7934 TM QUOTE 09- 14- 15.xls www.pipehunter.com - 800.373.1318 Page 1 of 2 April 2008 Confidential PipeHunter Quote Version 1 7934_T_M_ Truck Mount_- 3s00_O_ PSI @_40 GPM__ (2.3" Diameter 6-Jet Red Dawg (Climbing Nozzle), 2.3" Diameter 10-Jet Red Dawg (Flusher Nozzle), 2.3" Diameter Chisel Dawg, 112" Rotator, 1/2" Button Dawg (Lateral Nozzle) „ , _....... ELECTRICAL OPTIONS 9000 -0021 Arrow stick w Control Box & Mounting Bracket LED I $ 1,300.00 $ 1,300.00 Light- Strobe Light w /Limb Guard t $ 285.00 $ 285.00 Light - Low Water Warning Lite 1 $ 205.00 $ 205.00 9000 -0023 Light - Panel Light 1' $ 80.00 $ 80.00 9000 -0024 Light -Work Light - (Control panel) LED I $ 200.00 $ 200.00 9000 -0024 Light - Work Light (Engine -Pump area) 1 $ 200.00 $ 200.00 Light - Work Light (Arrowstick DS) LED 1 $ 200.00 $ 200.00 Ll,ght - Work tight (Arrowstick PS) LED 1 $ _ _ 200.00 $ 200.00 LED UPGRADE ON CHASSIS LIGHTING MUST BE SUPPLIED BY THE CHASSIS MANUFACTURE TOOL BOX OPTIONS ....................... ..... .. ............ .... .. ....... ..... .. ... .. ......, .. .... ...... .... .. m Tool Tray, Above Frame - Aluminum 14" x 14" x 60" 1 STD 2 $880.00 $ 880.00 Locking, Below Framo - Aluminum 118 " x 18" x 24" _ 1 $720.00 $ 720.00 Locking, Above Frame - Aluminum 15" X 33" X 40" Curb Side 1 $1,060.00 $ 1,060.00 Locking, Above Frame - Aluminum 15" X 33" X 40" Driver Side 1 $1,060.00 $ 1,060.00 Rubber Dry Decking - Each 5 $150.00 $ 750.00 ACCESSORIES _ 3007 -8001 Hydrant Wrench _ 1 $ _ 25.00 $ 25.00 3008 -0511 Manhole Hook 1 $ 35.00 $ 35.00 8401 -1401 Manhole - Upper Roller Aluminum 1 $ 250.00 $ 250.00 7600 -0278 Traffic Cone Rack - Reel Deck Mount I $ 125.00 $ 125.00 9000 -0095 Side Ladder w Handles- PS Front 1 $ 358.00 $ 358700 MANUALS 3023 -0002 PIpel-lunter Operators Manual CD 1 $ 10.00 $ 26- OMRG33324 Engine Operators Manual CD 1' $ 75.00 $ FRAME, 6" Frame 1 Std. Std. DOT LIGHTING PACKAGE 1 Std. Std. Back Up Camera IN /CAB Monitor 1 $ 1,5130"00 $ 1,500.00 LINER OPTION PipeHunter Speed Liner Frame &Reel 1 Std, Std. Color: [ ] Coal Black, [ ] Medium Blue, [ ] Victory Red, [ ] Wheatland Yellow, [ ] Crocodile Green, [ ] Omaha Orange, [ ] Battleship Gray Quoted By: Todd B Bolin 08 -31 -15 Total Options: $ 34,946.00 Base Price: $ 58,700.00 Subtotal: $ 93,646.00 I ESS GUY BOA1111111 II:UV'', a;U:YV. "V 4 F1 (4,,662 303 Subtotal: $ 88,963.70 FRAME & CHASSIS OPTION - CJusloonei Supplied Wa;ru NRR Chassis t9 "500 GV'W 110 120" CA 1 $ , t,000,g(1 (Budgetary Price Only) Labor - Moonl ng Fee _ _ I $ 1,000.00 $ 1,000.00 Sales Tax Jn, vvvv_.WVW Sales Tax: $ Miles @ $Z501 300 Freight: $ 750.00 Ship Method: Notes: BUY BOARD FEE: $ - Total: $ 146,613.70 Signing this quote confirms that you have verified the specifications and agree with the final costs, Any specification changes made after verification may alter costs If is the dealedcustomer's responsibility to ensure that the equipment ordered meets specifications and /or quotations Municipal Payment Terms: 30 1n Signature: Date: PipeHunter, Inc. 1617 Garden Road, Peadand, TX 77581 DENTON 7934 TM QUOTE 09- 14- 15.xls www.pipehunter.com - 800.373.1318 Page 2 of 2 EXHIBIT 3 MEMORANDUM DATE: October 24, 2013 TO: Elton Brock FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente SUBJECT: Peterbilt Truck Chassis Fleet Services is recommending the purchase of Peterbilt chassis for fleet replacements whenever an available model fits our replacement specifications based on fleet standardization. Fleet standardization minimizes costs and improves efficiencies relating to technician training, diagnostic software, required specialty tools and stocking of replacement parts. Also, we are currently already set up as a warranty provider for the Peterbilt trucks through the Rush Truck Center network. As an approved warranty provider, we perform repairs that are covered under warranty, reducing downtime and costs associated with transportation of these trucks to the Rush shop. I believe the purchase of the appropriate Peterbilt Truck Chassis is the best value and I am requesting authorization to make this purchase based on fleet standardization. Regards, Terry Kader Fleet Services Superintendent 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 EXHIBIT 4 DRAFT MINUTES PUBLIC UTILITIES BOARD November 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, November 9, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chair Randy Robinson and George Campbell, City Manager Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA F. PUB15 -054 Consider recommending 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 two (2) flushing trucks for the City of Denton Wastewater Collections Department; and providing an effective date (File 5988- awarded to Rush Truck Center in the amount of $486,061.25). Board Member Jackson motioned to approve items F with a second from Board Member Russell. Vote 6 -0 Adjournment 12:11 p.m. EXHIBIT 5 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 TWO (2) FLUSHING TRUCKS FOR THE CITY OF DENTON WASTEWATER COLLECTIONS DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5988- AWARDED TO RUSH TRUCK CENTER IN THE AMOUNT OF $486,061.25). 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 5988 Rush Truck Center $481,061.25 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 5 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 5988 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 DENT' IN File #: ID 15 -1155, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance ratifying the expenditure of funds by the City Manager for the emergency purchase and installation of a twenty (20) ton heating, ventilation and air conditioning (HVAC) unit to provide cooling for critical Denton Municipal Electric and Technology Services operations and 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 5984- awarded to Tech Plan, Inc. in the amount of $62,690). FILE INFORMATION This item is for the emergency replacement of a heating, ventilation and air conditioning (HVAC) unit at the Denton Municipal Electric (DME) Operations building. The twenty (20) ton HVAC unit provides cooling to a computer server room that houses critical DME and Technology Services equipment. These servers require continuous cooling and humidity control or they will fail. The existing unit has lost 50 percent of its capacity because of a failed compressor. Only because of the milder temperatures does it have the capability to keep up with the load requirements. This is considered an emergency purchase because of the critical nature of the DME computer operations and the fact that this equipment is not manufactured until the vendor receives a purchase order. Purchase Order 174704 was issued on October 29, 2015 to start the manufacturing process and the equipment is expected to be delivered and installed by January 1, 2016. Section 252.0022 of the Texas Local Government Code states that exceptions can be made to the competitive bidding requirement when procurement is necessary because of unforeseen damage to public machinery, equipment, or public property. In compliance with the City of Denton Procurement policy, a Declaration of Emergency form was completed. RECOMMENDATION Approve the emergency purchase of a twenty (20) ton HVAC unit to provide cooling for critical Denton Municipal Electric and Technology Services operations from Tech Plan, Inc. in the amount of $62,690. PRINCIPAL PLACE OF BUSINESS Tech Plan, Inc. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1155, Version: 1 Plano, TX ESTIMATED SCHEDULE OF PROJECT The installation of the new HVAC unit was completed on January 1, 2016. FISCAL INFORMATION This emergency repair was funded from Denton Municipal Electric Capital Project account 603837497.1360.3900. Purchase Order 174704 was issued on October 29, 2015 in the amount of $62,690. EXHIBITS Exhibit l: Quote Exhibit 2: Emergency Declaration Form Exhibit 3: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Dean Hartley at 349 -8423. City of Denton Page 2 of 2 Printed on 11/12/2015 EXHIBIT I 4;r TecWvlan , _J-h'cjN"-' 7 EMERSON. COMPANY: 61ty of Denton PROPOSAL #: Q02331219— ATTN: Steve Bornfeld PAGES: 10 E-mail: steve.bornfeld@cityofdenton-com DATE: Jun 18, 2015 O. PHILIP BONDS PROJECT: CITY OF DENTON - DEMTON - CRAC REPLACEMENT Liebert-Proprielaq Page 1 of 10 7/ iTO T -TI 7, EXHIBIT I Services Include: • One year Parts and Labor Warranty • Five (5) Year Compressor Warranty . . . ..... . ........... - ---- ---------------- - - ----- .. . ....... . . ..... .. . . ........ ... . . .. . . ............. . ........ . .... . . . . ...... . ... . ....... . Total Equipment Price Including Freight but NOT TAX $41,i10.06,1 [�l...-..---.--.---..-.--.,.-,.,..-.....�.�.�.-�-�--�--..---.---���..�.--.�..'-II.-Ill.-I�----�---,�.---".-..� ....... ... . -- . .... . . . . . ........ . . . ... .......... ......... ........ ........... . . ... . . ............... ............... . . . ...... . ........ .. ---= IT TWO: Mechanical and Electrical Installation Services 6/22/2015 Lieberi-Prolyrietary Page 2 of 10 EXHIBIT I OPTION: If existing lines sets need to be replaces, please add $3,850M to above price. NOTES: • Price does not include overtime labor. • Price does not include any additional temporary air conditioning during cut over. Pricing for th is option can be provided if needed. Thank you for allowing us to provide this proposal for you. Please let me know if you have questions or need additional information. MMMMM IMMEM Liebert�Projyfietary Page 3 of 10 EXHIBIT I L.loberl Corporation I ERMS AND CONDITIONS OF SALL Llebert Corr.roration is herein referred to as the "Seller" and the customer of person or onfily purchasing goods and/or services ("Goods") arid/or ficonsing software aridlor firmware, which are preloaded, or to be used with Goods ("Software") frorn Seller is referred to as the "Buyer." These Terms and Conditions, any Price list or schedule, quotation, acknowledgment, Seller's scope of work, or invoice train Seflor relevant to tyre sale of the Goods and licensing of Software and all documents incorporated by specific reference herein or therein, constitute Iris Correlate and exclusive stalern(int Of file faults of the agreement governing the sale of Goods arid/or license of Software by Seller to Buyer. Seller's acceptance of Buyer's purchase order is expressly conditional on Buyer's assent to all of Seller's terms and conditions of sale, Including farm and conditions that are different frorn of additional to the terms and conditions of Buyer's purchase order. Buyer's acceptance of file Goods and/or Software will manifest Buyer's assent to Onese, Terms arid Conditions Seller reserves the right in its able discretion to refuse orders. I pjjtU_$.: Unless otherwise specified in writing by Sells(, One price quoted or specified by Seller for the Goods and/or Software shall remain in affect for thirty (30) days after the date of Seller's quotation provided an unconditional authorization from Buyer for the shipment of the Goods and/or Software is received and accepted by Seller within such time period If such authorization is not received by Seller wrihin such thirty (30) day period, Seller shall have the light to change the price for the Goods and/or Software to Sellers price for the Goods andle" Software at are time of shipment. All prices arid licensee lees are exclusive of taxes, transportation and insurance, whidi are to be borne by Buyer. Unless otherwise specified by Seller, parts ("Paris') mar are required for the performance of services will be furnished at Seller's then prevailing prices. Seller assigns to Buyer any warranties which are made by manufacturers and suppliers of Parts and which are assignable Except as specified above, Paris furnished hereunder are furnished AS IS, WHERE IS, WITt I NO WARRANTY WHATSOEVER. 2 JAAU Any current or future tax Or g ru overnerilat charge (or increase in same) . rig Seller's costs Of production, sale, or delivery or shipment, of which Seller is otherwise required to Pay of collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, Parts, and or Software, shall be for Buyer's account and shall be added to the price or billed to Buyer separately, at Seller's election., 3. Jf_13M_QF_EW_MJ.: Unless otherwise specified by Seller, terms are riot thirty (30) days from date of Seller's invoice in U S. currency. Seller shall have the right, among other namealfies, either to terminate this agreement or to suspend funnel, performance under this and/or other agreements with Buyer in file event Buyer fails to Make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. if airy payment owed to Seller is riot paid when clue, it shall bear interest, at a rate to be determined by Seller', which shall not exceed tire maximum rare pernifiled by law, from the date art which it is due until it is paid Should Buyer's financial responsibifity become unsciflidactory to Seller, cash payrnerits, or security satisfactory to Seller may be required by Seller for future deliveries of Goods and/or Software. It such Cash payment or security is not provided, in addition to Seller's other rights and remedies, Safer may discontinue deliveries. Buyer hereby grants Seller a security interest in all Goods andlor Software sold to Buyer by Seller, which security interest shall continue until all such Goods and/or Software are fully paid for, and Buyer', upon Seller's dernand, will execute and deliver to Seller such instrurnants as Seller requests to protect arid perfect such security interest. All pufcIiases paid by credit card shalt/ be charged a 2.0% usage surcharge of the Invoice total, for fees paid by Seller to accept credit card transactions. 4 While Seller will use all reasonable commercial efforts to maintain the delivery deals) and/or performance dates acknowledged or quoted by Seller, at shipping dates arid/or performance dates are approximate arid riot guaranteed. Seller reserves the right to make partial shipments. Salter, at its option, shall not be bound to tender delivery of any Goods, Parts, and/or Software for which Buyer has not provided shipping instructions and other required information. If this shipment of the Goods, Parts, and/or Software is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. For sales in which the and destination of the Goods, Paris, and/or Software is outside of the United States (except for those international sales to Seller's affiliated companies), rxI( of loss and legal title to the Goods, Parts, and/or Software shall transfer to Buyer immediately after the Goods, Parts, andror Software have passed beyond the territorial limits of the United States For international sales to Seller's affiliated companies, all shipments of Goods, Parts, and/or Software are made on a Delivered at Terminal (BAT) basis, per Incourms 2010, with freight charges from Seller's facility to destination terminal invoiced to buyer eitrier on a Prepaid or PPD/Add basis, as agreed to by Seller and Buyer. All other shipments of Goods, Parts, arid/or Software are made on an Ex Works (EXW) Seller's Shipping Point basis, per Inciatermis 2010, with Seller responsible to load goods On Buyer's nominated vehicle. Any clairns for shortages or damages suffered in transit are me responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the firne of delivery. 5, LIMI' ' TE " ELkVAR_RAqR: Subject to fire limitations of Section 6, Seller's standard warranty that is applicable to the Goods and/or Software at the none of purchase is the only warranty applicable to the sale of Seller's Goods and/or Software and its forms, conditions and firictaflons we incorporated by reference herein, THE WARRANTY SET FORTH IN THIS SECTION 5 AND THE WARRANTY SET FORTH IN SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND/OR SOFTWARE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER'S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, noinnal wear arid tear, negligence (other than Sorrit's), unauthorized rilodificaUcin or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, inproper installaiiort, repair, handling, rnainionance or application of any other cause not the fault of Seller. 'To me extent that Buyer Or its agents have supplied specifications, information, representation of operating conditions or other paid to Seller in the selection or design of this Goods arid/or Software and the preparation of Seller's quotation, and In the event that actual operating c,ontfitiors or other conditions differ from those represented by Buyer, any warranties or other provisions contained harsh that are affected by such conditions shall be null and void, Buyer ESSUTTIOS all other responsibility for any loss, darriage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods aridlor Software, either alone or in combination with other products /components. 6 THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 8) SHALL, BE LIMITED 1-0 REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 6, SELLER SHALL NQT BE LIABLE. FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS, PARTS, AND/OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT SELLER'S LIABILITY I'D BUYER ANDIOR ITS CUSTOMERS SHALL NOT EXTEND 70 INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The turn) "consequential damages" shell include, but not be firnited to, loss of anticipated profits, business interruption, Loss of use, revenue, reputation and data, costs Incurred, including without linnifistion, for capital, fuel, power and loss or damage to property or equipment. It is expressly understood that any achnicat advice furnished by Seller with respect to the use of the Goods and/of Software is given without charge, and Seller assumes no obligation or liability for the advice given, or rcesult,, obtained, all such advice lacking given and accepted at Buyer's risk 7, JgUfj}N QL-,: Seller shall maintain the following insurance or self-insurance coverage: Worker's Compensation in accordance with the statutory requirements of the Mate in which the work is performed. Employer's Liability with a limit of liability of $2,000,000 per occurrence for bodily injury by accident or bodily injury by disease. Commercial General Liability (CGL) for bodily injury and properly damage with a Ilmit of $2,000,000 per occurrence and aggregate. CGL includes Contractual Liability. CGL does not include Products arid Completed Operations coverage, which is self-insured, Automobile Liability Insurance trial covers usage of all owned, non-owned and leased vehicles and which is subject to a combined single limit per occurrence of $2,000,000. Automobile Liability Insurance includes Contractual Liability, but no special enctorsernents. Additional information related to the Insurance beverage provided by Seller can be found at Buyer expressly acknowledges and agrees that Seller has set Its prices and entered into this Agreement In reliance upon tire limitations of liability, Insurance coverage, arid other terms and conditions specified herein, which allocate file risk between Seller and Buyer and form a basis of this bargain between the parties. 8, pA1fLNJ:§_ANLj&LQPyfqC�jJT Subject to fire limitations of tire second paragraph of Section 6, Seller warrants that the Goods aridlor Software sold, except as are made specifically for Buyer according to Buyer's specifications, do not infringe any valid U.S. patent or copyright In existencie as of the date of shipment. This warranty is given upon the condition that Buyer promptly notify Seller of any clan or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Sof&s warranty as to utility patents only applies to infringement arising solely our of too inherent operation according to Seller's specifications and instructions of such Goods arid/or Software In the event (i) such Goods and/or Software are held to infringe such a 0 S. patent or copyright in such suit, and the use of south Goods and/or Software is enjoined, of (ii)a compromise or settlement is made by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods and/or Software, or replace them with iron- infringing Goods aridlor Software, of modify same to becorro non - infringing, or grant Buyer a credit for the depreciated value of such Goods arid/of Software arid accept raturn of them. In the event of file foregoing, Seller may also, at its option, cancel rho agreement as to future deliveries of such Goods and/or Software, without reality. 9. gxqU§L, Seller shall not be liable for delays in performance of for non-performance due to acts of God, acts of Buyer; war; cfpidernic; fire, flood weather, sabotage, strikes or labor disputes, civil disturbances or riots', governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers: or unforeseen circumstances or any events or Causes beyond Seller's reasonable control. Deliveries or other performance aray be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the evert of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing If Seller deter mines that its ability to supply the Islet demand for the Goods, Parts, and/or Software, or to obtain material used directly or indirectly in the manufacture of the Goods, Parts, andlof Software, is hindered, limited or (Trade impracticable clue to causes set forth in the preceding paragraph, Seller onay allocate its available supply of file Goods, Parts, Software, and/or such material (without obligation to acquire other supplies of any such Goods, parts, Software, or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which intry result Therefrom 10, gk NggLILkl!g [ Buyer may cancel orders only upon reasonable advance written notice and Open payinerlif to Seller of Sellers cancellation charges, which include, among other things, all costs and expenses incurred, arid, to cover cunmitirrients made, by the Seller and a reasonable profit thereon Sellers determination Of such cancellation charges shall be conclusive 6/22/2015 Lieberic-Proprietary Page 4 of '10 Liebet Con norms & Condifions - R., 2013 EXHIBIT I 11 gLfA_NgL�. Buyer may request changes or additions to the Goods, and/or Software consistent with Seller's specifications and criona. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees, and dates of delivery and/or performance dates. Seller reserves the right to change designs arid specifications for the Goods, Parts, andlor Software without prior notice to Buyer, except with respect to Goods and /or Software being made -to- order for Buyer. Saller shall have no obligation to install or make such change In any Goods and/or Software manufactured prior to the date of such change. 12 V.VqLL&Ui1MfQ it jj�LAJ._ GOODS, PAR-I-S, AND SORWARE SOW EREUNDER AIZE N01' FOR USE IN CONNEC'T'ION WIT'll ANY NUCLEAR, MEDeAL, LIFE-SUPPOR] AND RELATED APPLICAI"IONS. Buyer accepts Goods, Parts, and Software with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnity and [told hanniless Seller from any clairris, losses, suits, judgments and damages, Including incidental and consequential darinages, arising frorn such use, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller's liability is based on negligence or strict liability 11 A. V [JUN_"[': Buyer shelf not assign its rights or delegate its duties hereunder or any interest herein without Via prior writer) consent of Seller, and any such assignment, without such consent, shall be void 14 $Qt7jYVABE� Notwithstanding any other provision therein to file contrary, Seller or applicable third party licensor to Seller shall retain alt nights of ownership and title in h; respective Software,, including without limitation all rights of ownership arid title in its respective copies of suer) Software Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software Incorporated into the Goods solely for purposes of Buyer properly UtAlZing such Goods purchased front Seller. Ali other Software shall be furbished to, and used by, Buyer only after execution of Sellar's (or the licensor'g) applicable standard lim-mrse agreement, the terms of which are incorporated herein by reference, 15, JQ"W�: 'Tool, die, and pattern charges, if any, are In addition to the price of the Goods and are due and payable upon completion of the tooling All such tools, dies and patterns shall be and remain the property of Seller, Charges for tools, dies, and patterns do not convey to Buyer, filter, ownership interest in, or rights to possession or removal, of prevent their use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision. 16, PD0RQNJAJJQR: Better shall provide Buyer with i data /documentation which is specifically Identified in Seller's quotation. If additional copies of data / documentation are to be provided by Seller, it shall be provided to Buyer at Belief's applicable prices than in effect, 17 LUPLgJJQWJ � J. MArz Buyer, at its option and expense, may observe the inspection and testing by Seller of the Goods and/or Software for compliance with Seller's standard test procedures prior to shipment, which inspection arid testing shall be conducted at Seller's parrit at such reasonable time as is specified by Se:nller Any rejection of the Goods andmr Software must be made promptly by Buyer before shipment. 'Tests shall be deerned to be satisfactorily completed and the test fully mer when the Goods andlof Software meet Seller's craeria for such procedures. If Buyer does nor inspect the Goods afidior Software at Settees plant as provided herein, Buyer shall have for) (10) days frorn (I) the date of delivery of goods andlor Software and (if) from the date of completion of each portion of the services to inspect the Goods and/or Software, and in the event of any non - conformity, Buyer must give written notice to Seller within said period slating why the Goods and/or Software are not conforming. Failure by Buyer to give such notice constitutes unqualified acceptance of the Goods and/or Software. Buyer's sole remedy for non-conforming services shall be correct performance of services incorrectly performed by Seller, 18 BIT VB . _UQ.._QQQ0,: Advance written permission to return Goods and/or Software must be obtained frorn Seller in accordance with Seller's then current Retuni Material Aulhorization (RMA) procedures and a return authorization number issued. Such Goods and/or Software must be (I) current, eriused Goods and/or Software, (if) free of all lions, encumbrances, or other claims, and (iii) shipped, transportation prepaid, to Seller's specified location Returns made without pfoper, written permission will not be accepted by Seller. Seller reserves the right to inspect Goods and/or Software prior to authorizing return 153. E311 EfIVMCC Additional charges will be billed to Buyer at Seller's then prevailing labor rates and Parts prices for any of the following: a) any services riot specified In Seller's quotation, Seller's order acknowledgement, or other docurnents referenced herein and therein; b) any services performed at times other than Boiler's normal service hours; c) if reasonable site and/of equipment access is denied the Seller service rapiosentatce� and d) if it is necessary, due to local circumstances, to use union labor or fire an outside contractor, Seller service personnel will provide supervision only and the cost of such union or coritract labor will be changed to Buyer. 20 PRAyJVN_Q5: Seller's prints and drawings (including without linfitallon, the underlying technology) furnished by Seller to Buyer in connection with his agreement are he property of Seller area Seller retains all rights, including without Unitafion, exclusive rights of use, licensing and sale Possession of such prints or drawings does not convey to Buyer any nights or license, and Buyer shall return all copies (in whatever medium) of such prints or drawings to Seller immediately upon request therefor. 21 VQ. p yLR U ._ _TAM_PAJA: Is this extent that Seller has been provided by, or on behalf of, Buyer any specifications, description of operating conditions or other data arid Information in connection with the selection or design of the Goods and/or Software, and/or the provision of Services, and the actual operating conditions or other circumstances differ frown those provided by Buyer and relied upon by Seller, any warrenfies or odhef fsrovislons contained herein which are affected by such conditions shall be null and void. 22, fXfl _Q �MPQR'r Buyer agrees that all applicable import and export control laws, .[�[L_ _ regulations, orders and requirements, including without limitation Wass of then United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods, Parts, Software, and Services may be supplied, will apply to their receipt and USE) In no event shall Buyer use, transfer, release, irnport, export, Goods, Parts, or Software in violation of such applicable laws, regulations, orders of requirements. 23 Buyer shall not solicit, directly or indirectly, or employ any ornployee of Seller during the period any Goods are being provided to Buyer and for a period at one (1) year after the last provision of Goods, 24 QLNL� r "n)ese brine and conditions suporarade all other communications, negotiations and prior oral of written statements regarding the subject matter of these terms and conditions No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon U're Seller unless piade in writing arid signed off its behalf by a duly authorized representative of Safer No conditions, usage of trade, course of dealing or perlearranner understanding of agreement purporting to modify, vary, explain, or supplement these teens and conditions shall be binding unless hereafter made in writing and signed by the early to be sound, and no modification or additional terms shall be applicable to this agreement by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping Instruction forms, or other documentation containing ternins at variance with or in addition to those set fork, herein Any such modifications or additional tones are specifically rejected and deercled a rnatoral alteration hereof. If this document shall be deerned an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer's assent to any additional or different terms set forth herein. No waiver by either party with respect to tinny breach or default or of any right at rernedy, and no course of dealing, small be deemed to constituto a continuing waiver of any other preach or defaut or of any other right or remedy, unless such waiver be expressed in writing and signed by The party to be bound All typographical or clerical errors funds by Seller in any quotation, acknowledgment or publication are subject ubject to correction. 'T'he validity, performance, and all other matters ielating to the interpretation arid effect of this agreement shall be governed by the law of the state of 01nio without regard W its conflict (.if laws principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in Ohio and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions rEalating to this contract, may be brought by either party more than two (2) years after the cause of action ties accrued. I he U, N. Convention on Contracts for the International Sales of Goods shall riot apply to this agreement. 25, IN EMNLTY Each party shall indemnify and hold the other party harmless frorn loss, damage, lablifty or expense resulting from damage to personal property of a third isify, of injuries, including death, to third parties to the extent caused by a negligent act or ornission of the party providing indemnification of a party's subcontractors, agents or employees during performance of services hereunder, Such indemnification shall be reduced to the extent daniage or injuries are attributable to others. The indemnifying party shalt defend the other party in accordance with and to the extent of the above indemnification, provided that the indemnifying party is. i) promptly notified by the other party, in writing, of any claims, demands or suits for such damages or injuries if) given all reasonable information arid assistance by he other party, iii) givers full control over any resulting negotiation, arbitration or litigation, including the right to choose counsel and settle ciairris, or the indemnifying party's obligations herein shall be deerned waived. Liebert Corp 1'eirris & Conditions Rev 2013 6/22/2015 Liebert- Noprietaty Page 5 of 10 bebr,n con) Ter is & Condilens - Rom 20t3 EXHIBIT I .1, 1 'F ' T IAIM LLE zA-1�LaA—NMJ-!R, T z-QJ This Warranty is given ONLY to purchasers who buy for COnin—cial Ol- industrial rose in tile ordinary course ol'each purchaser's business, L,eptnt Liebert Corporation products and systen-is are in our Opinion the finest available, We take pride in our products and are pleased that you have, chosen therm Under certain chcurnstances we offer with our products the following Opdonal Extended Four Year Compressor Warranty. Please lead your Warranty carefully. This Wairanty sets forth our responsibilities in the unlikely event of' defect and tells ),oil how to obtain performance under this Warranty. ' WA Y DR—OILUCIT --11LCSiY DELI): I'llis warraray applies to ,ill Lieberl branded 'I hernnal Managenient products with crairpressors, included but riot limited to, unless specifically noted, Liebert Mrni-Mate2, Lrebert DataMale, Licbeit Challenger 3000, Lrebert Challenger H R, Liebert Industrial Cooling Series, Liebert Condenser, 1-Jebert DS, Liebert DSE, Licberl CRV, Licberl XL), Liebert I WC 'f "ern "s Of iNvitaimAy As provided herein, all Lrebert product Paris are warranted to be free ot'defects in material and workmanship for a period of'( ) one two three ( ) four years after the expiration of' the Licbert One Year Limited Warranty Against Defects in Material and Workmanship, Ifthe compressor fails to conform to the Warranty within the Warranty period, Liebert, at its Option, Will furnish a new or factory rernaniffactured replacement compressor. This is a parts Warranty ONLY and does not include Services, which roust be provided by as qualified Service Provider, Liebert will riot assume any labor or shipping charges associated with replacement ol'the compressor. Art namnly-la'xtends t0hrsljj1,Lqjr45gj, for Ilse Non-trag s ble: This Warranty is extended to the first person, f"Irryl, association or corporation for whom the Liebert product containing the compressor is originally installed for use (the "User") in the fifty United States or Canada. This Warranty is riot transferable or assigplable without the prior written permission of'Liebeit- I.Jebert assigns to User any warranties which are made by manufacturer s and suppliers Of'thC compressor, or any accessories thereto, contained in the Lieber , t product and which are assignable, but Liebert makes NO REPRESENTATIONS as to the effectiveness or extent of such warrandes, assumes NO RE,S]IONSIBILITY for any rurnters which May be warranted by such manufacturers Or Suppliers, and exterids no coverage under Bois Warranty to such components or accessories. p am in s, mIA110 mi Liebert warrants for the period and oil the terms at' the Warranty set forth herein that the Licbert product will conform to the descriptions contained in applicable certified drawings, if any, I.Jebert's final invoices, and to applicable Liebert product brochures and intinuals current as of tile date of product shipment ("Descriptions"). Lrebert does riot control the installation and rise of' any L,iebert product. Accordingly, it is understood that the Descriptions are NOT WARRANTIFS OF PL1ZFORMANCF.' and NOT WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. Within a reasonable fin-re, but in no case to exceed thirty (30) days, after User's discovery ol'a def"ect, User shall contact the local Liebert sales representative 1'rom whom the product containing the compressor was purchased and request a return authorization nurnber. User may contact Licbert at 1-800 LIEBERT (543-2378) l'or local Liebert sales representative url'ormation. Llser shall ship the compressor to the Liebert sales representative freigh't prepaid. User shall bear any other labor and shipping charges associated with replacement of compressors herein. Compressors shipped by User to the Liebert sales representative which have incurred freight damage (fire to [,iser's improper packaging of the compressor will not be covered by this Warranty and any replacement compressor needed will be invoiced ill the full current price amount air(] shipped freight collect to User. Subject to the firldtations specified herein, the Licbeir sales repmsentalive will arrange for replacement of' the non-corifbrining compressor warranted hereunder, without charge for materials. Warranty coverage will he extended only after the Lichen sales representative's inspection of the returned compressor discloses the clauried detect and shows no signs ol'treatment or use that would void the coverage of this Warranty. Replacement compressors shipped by the Licberi representative prior to inspection ol'the compressor claimed to be detective will be invoiced to User at the full current price amount and shipped ficif,.-Jrt collect F,0.13, the Liebert representative's facility. If the Liebert representative detennines that tire returned compressor is covered by this Warranty, User will be issued credit in air amount equal to the price of the replacement compressor previously billed to User, provided the returned detective compressw was shipped to Lrebert within thirty (30) days ol'receipt of the replacement compressor, All detective products and coloporient parts replaced under this warranty become the property of[Jebert, MLE, r ,ILi !yA1S!±Li:nja iL(je of 4"oILIlLom-c-ILLM, E L1LtRM-S* SIA)2000 rlwnnal Managemcnl Systems Wammylkev, 9 M 2013 EXHIBIT It is Liebeir's praci ice, comoislm' with its desire mrencdy Warranty ddecuin the mm/prompt arid effective manner possible, lo cooperate with and mi|bzethe services of component manufacturers and their authorized repiesentruives in the performance ofwork to correct defects in the product components. Aoourding|y. U'beu mny ud|izu third parties in the podunmunxu of vYmrumy wurk, including repair or replacement hereunder, where, in Liebert's opinion, such work can be performed it) less time, with less expense, or in closer proximity to the Licbert product, THIS WARRANTY DOES NOT COVER DAMAGE U& DEFECT CAUSED 8Ymiouoe, improper application, inadequate clectrical current or connection, inadequate water or chain services, negligence, inappropriate on site operating conditions, corrosive atmosphere, Failure to adequately rnaintain the Product using a qualified Service Provider, repair by non-Liebert designated personnel, accident in transit, tainpering, alterations, a change in location or operaling use, exposure to the elements, Acts ofGod, thefl, installation contrary to [Jeftert's recontmendalions or specifications, or in any event if the Liebert set irtl number has been altered, defaced, or removed. TRl3 WARRANTY DOE'S MVTCOYER shipping costs, installation costs, circuit breaker resetting, loss ofrefrigerant or maintenance or service ftenis arid further, except as may be provided herein, does NOT include labor costs or transportation charges arising frorn the rep|n0000 t*fili^ Lid`cu compressor o, any part thoeofo, charges m remove m reinstall the same m any yremiuesufUser, THE PK(A)DCTS LISTED 84T8/S WARRANTY ARE NOT FOR USE m ANY SAp�TY APPLICATIONS 0R WITHIN THE CON1 AINMI.,"NTARF"A OF A NUCIL.FAR FACILITY OR WHERI 'If IE PRODUCTS I IAVs POTENTIAL FOR DIRECT PATIENT C8NTACT0DnYBG&BA SIX (6) FOOT CLEA84NCC FROM ApAl/8mT CAN NOT' 8� MAINTAINED &TACLl[M8S THE PRODUCTS LISTED IN THIS WARRANTY MAY BL" PL,ACED DIRECTLY OVL`R PATIENTS OR DIAGNOSTIC AND SURGICAL £gO|»M8wTVMlY.*8Bn£TTIs END-USE COST0kx2R HAS SIGNED u2BE8rS8SA[TBC&8GAPpLlCxTlQNSxLG8 AORE'8MB0T'OT8GKvvl3B THE WARRANTY iSVOID. R5P&I8 OR xEk[ACGK18NT OF A DCy8CTlv2 COMPRESSOR OR PART TU8DCDF DOES NOT SXTEmD THE ORIGINAL }fARRANTYP8BlOD Lignilations: THIS WaD&^NrY IS IN UOV OF AND EXCLUDES ALL OT88k WARRANTIES, EXPRESS OR owpLuEC\ DvCLODzwS MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OSBn'88OL.D AND BXCLU8lVB REMEDY lx82pLACCxxLINTOFT88Ll8B8QTCQMP2B3QDRmSSszpOxrxu8&I`IDv� I; USER'S DBK1E"oYzSoBBM8T)TO FAIL, Up ITS ESSENTLAC PURPOSE BY ACUOxT0PCQ#yBT8N�JOxI3oIC?lON.O8B2RT'S RESPONSIBILITY FOR PROPF"RTY LOSS OR DAMAGE SHALL NOTEXC'ETDTHE NET PRODUC.71'PURCILASE PRICE. IN NO EVENT SHALL LlBQEDT ASSUME' ANY LIABILITY FOR INDIRECT, SPECIAL, /NC|osmrxL^ £X6bxpLAkY OR CONSEQUENTIAL DAMAGES 0pANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION L0STpRUnTS' ROSINESS INTERRUPTION OR LOSS OF' DATA, WFIF I'HER ANY CLAIM IS BASED UPONTHEORIES OF CONTRACI, NE(.3LIGE NCE, STRICT UADlL|TY.TQDT,0ROT8B&vYlSE,. Miscellaneous- NO SAL SPBR300,EmPLQySG OR AGENT OF DCBBDT IS AUTHORIZED T0 ADD T0 OR VARY THE T8&w18 OF THIS n/0KBANT,,vVm,uuty terms may be modified, Jm all, only ioe writing signed hywLioburtoQuoc Liebert obligations under [his warranty are conditioned upon Lieberl timely receipt offull payment ofthe product purchase price and any other amounts due. Lich*rt, reserves the right to supplement orchange the terms u/this Warranty in any subsequent warranty offering w User o/others. In the event that any provision oftfins Warranty should be or becornes imalid and/or unenforceable during the warranty period, the remaining teuno and provisions shall continue io full force arid effect, Tbio Warranty shall be governed by, and construed oudq tire laws of the State of Ohio, whbnm re&r*n'e to the conflict v[|upm principles thereof. This Warranty represents the entire agreement between Licberl arid User with respect to the subject matter herein arid supersedes all prior m contemporaneous oral or written communications, representations, understandings or agreements relating to this subject. Thermal Management System Warranly Rev, 9 W 2013 SL-02000 EXHIBIT LIMITED �l/AIZIZAN']')'I,'OR'I'IIEIZMAI, NAG This Warranty is given ONLY to purchasers who buy for mnmm*rdw> or imdmmbia| use in the ordinary course ofuo6 purchaser's business. General: I.icbortCorpo,atiou products and nyaoomo are in our opinion the finest available, We take pride in our products and are pleased that you have chosen them, Under certain circumstances vvn offer with our products the «n}|nwio& One YoozLimi/od \9nouoty Against Defects in Material and Workmanship, Please read your Warranty xootu|/y. Tbio Yymmo1y uuo D/uh our ,uopansibi|dioo in the unlikely event ofdol�cc/ and te||a you how tn obtain performance, under this Warranty. ONE YEAR LIMITED WARRANTY AGAINs,r DEFECT'S IN MAWRIAL AND WORKMANSHIP PRODUCTS CCA'FRED: This warranty applies m all lJubort branded precision Cooling prmjuutS, included but not Dmded to, unless specifically noted, Lioher/K8ini-K4um2l'm.LicbouDotaMalerm,DobertCballco8orm3UOO,LicbouCbal/coQnr"mllR,Li*bon industrial Cooling Series, Uohnn Condenser, Lieber( MC, I.JdhortDryono|er,UcbrnQSrw, Lieber( D8K,Lin6crtCuom,LiobertCRYrm,Ljeb*rt Ternis of Wit A; provided herein, the Q*borl product is warranted to be ftee of'delects in inaterial and workmanship for a period oforte year from the start-up date provided the, product Warranty Inspection street is returned to Lieberl, start-up occurs within six (6) nionths ofthe Liubm1 shipping date, and the product has been stored iou suitable rnvimomco1 prior toytart-op. Tbo start-up date will be determined only front the completed inspection and start-up sheet received With the product. l[ the product start-tip sheet isriot returned to I-Jebert, the Liebert product is warranted to be free U&J'ects in inaterial and workmanship 1'(.)r a period ofthirteen (13) months front date ol'product shipment by Liebeft. The shipment date wilt be determined only frorn the Liebert bill oflading. Io addition, for products ioutu/|nd io the United States orCanada, the drive package contained in the UcbortDS product and Lixbnd ln|u\nCuo1200 Compressor is warranted to be 1reo ofdnfbun in mat*dul and workmanship 8/r it period o[fi,c (5) years from the above referenced dates, asapplicable. The drive package contained iothe LiubonD3 product consists of'hlowur belts, o blower ohufl. blower bearings, a blower pulley, and mu/orsheave. If any [)agor portion rfUeljcben product fails w conform to the Warranty within the Warranty period, Lieburt,m its option, wiUQriuborworfacmryrenoaovOcmmdconpooente/orrepucmmp|nc*mcuo{tbatporiouorpart,mLicbu1omyfuoisb User with ure9|ucomcntpm`duu.Liebert will riot assume any labor or shipping charges associated with repair or repla.cerrient of' the Liebert product or part thereof This is a Parts Warrairty ONLY that does riot include Set-vices, aH Services shall be provide(] by a qualified Service provider. Upon Liebert's request this warranty intry require recorded proof ot'Quarterlyproduct maintenance completed by a qualihed service provider. ]fit is determined that Failure occurred dUe to lack ofniaintenarice, Uehcrt maintains the right tn deny the warranty daim, This Warranty is extended m the first person, fim\ association nr corporation hor whom [lie Uohor product specified herein ix originally installed for use (the "Dom,) io the fifty United States or Canada, This Warranty io not transferable massignable without the prior written pcunisoinoo[Dchcu, Liebert assigns to User any warranties which Are niade by nianufacturers and suppliers of'corriponents of, or accessories for, the Ijcbnn product and which are assignable, but Liobert makes 0( REPRESENTATIONS aom the effectiveness m extent o[nuxb wurl-m,doo, aoounocs NO RESPONSIBILITY Dur any mmuom which may be warranted by such m000laoun:rs or onpp|iom and extends no coverage Under this Warranty to such unmpouoo|snronaeoondum. EXHIBIT Lieber Nvarrums for the period and oil the terms of&* Warranty set lorthbeidothat the Ucbert product will conform to the descriptions contained in tbe certified drawings, if any, applicable rbuun, LjdhoYu 6na] invoices, and to opp|ipmb|w Liohmrt product broc.hures and manuals current as of' the date of I)rodUCI shipment ("Descriptions"), Uebcd does not control the use u[ any Liohrrt product. Accordingly, it is understood that tbo D*orhpbuuo are NOT WARBA0T/E�'S OF yEhPQkMANCE and NOT \uARlANTlE8OF FlTNB8S FOR A PARTICULAR PDBY0SE. M�Iirranjy_Ltairns Procedure: Within u reasonable drne, but inon case m exceed thirty (3Ndays,wfim User's discovery ofadoleot, User uhad| contact the |nno bohot sales repreoenVmivuDnm wbom the product was purchased, Docr may contact Liebu1at l-008OSB£KI(543-2378)for local Liebert sales representative infort-nation, SubJect to the limitations specified herein, the Liebert sales representativc will moanQe/oraLiehcnxurvicco9roson/ativetorcp^irvrn:p|uuwthonun-ooufooniogUcbcrt,pmduupurrontpdhomnodecwithnut dburgc for materials, Dowr shall bear all labor or shipping charges associated with repair or replacement of the product beruiu, Warranty coverage will be extended only ahnrU`e Liebe, service representative's inspection discloses the claimed dnEclood shows no ai&uso[boamoot o, use that would void the coverage ofthis Warranty. All detective products and component pmt replaced under this warranty bucomc the property o[Liubot. It is Liebert's practice, consistent with its desire to rernedy Warranty defects in the inost prompt and effeclive manner possit.)Ie, to cooperate with and odUzCtbn services oYcomnoreotmaoufiacurumand their authorized rcpznnut4ivcm io the performance of' work to correct defects in the product components. Accordingly, Liebert inay utilize third parties in the performance ofWarranly work, including repair ur replacement hereunder, where, in Licbofaopininn, such work can be performed in \mabmc, widh |exo expense, or it) closer proximity tu the Linbortproduct. Iterns Not Covered By Warranty, TBYB WARRANTY DOES NOT COVER DAMAGE, OR DBT'2CTCADS2DDY misuse, improper application, wnogor inadequate electrical current or connection, inadequate water or drain services, negligence, inappropriate on site operating onnd0uns, omrmovu ounospbme' bJ\urc to adequately oainuJu the Product rising uqoalUlnd Scmio: provider, repairhy ono- L.irbmudeaignated pcx^voouL mnridnut io transit, tampering, alterations, "doauge in location or operating use, exposure to thn 6emnma. Acts of'God, theft o,installation contrary to Uebert's recommendations or specifications, or in any event ifthe Liebert serial number has been altered, defaced, orremoved. THIS WARRANTY DOES NOT COVER shipping costs, installation costs, circuit hroko, rose&o&' lnaa o[ ncfrigcmot, or maintenance or service ioomo an(] further, czrel* as muy be provided boroio, doeu NOT include labor oogm or transportation charges arising firt)m the repair or replacenient ofthe Liebert product or, any part thereofor charges to remove or reinstall same ar any premises v{Umnr. THE PRODUCTS LISTED lN THIS WARRANTY ARE NOT FOR USE" ]N ANY SAFETY 6PPI-lCATlONS OR. WITHIN THE CONTAINMENT AR.I&0y/\NQCLE"AR. FACILITY OR WQBRETHE PRODUCTS HAVE POTENTIAL FOR QlDBCTPAT[�NTCON7ACTnRY9REIR8& SIX (6)y0oT CLEARANCE" FROM &P6T(ENTCANN0TDE &8bIN1AINSDATAl..�l,rlMD8. THE PRODUCTS L.I&TCDlN THIS WARRANTY MAY BEP[&C2DD1RBCT[YQ\/CK P&TlENT8ODDl.AGN08TICANDSOxGlCAL,F.',0U1pMENJONi..YWB�kE3BEEND-U9EC88TQK4�IZ8ASSlC]MED UC8EIRT'R HEALTHCARE APPLICATION 8&L£0&GRBCMENT,OTHERWISE WARRANTY l8VOID. REPAIR, QkBIy1,ACCMf1' .NTOFADB[2CT]nByDODOCT8RPA&7T8E0B0p DOES NOTGXTENDT8EORIGINAL WAlKA0TY9BRIOD. Limitations: THIS WARRANTY l@1NLlBODF6NDF"XCLUDCS8L,i OTHER WARRAN'OE�S.2XPKFISS OR IMPLIED, INCLDDI0G MERCDANTADlL]Ty AND FlTNE'S8 FOR 6PARTICULAR PDRP08D D3CR'8 SOLE AND EXCLUSIVE REMEDY IS RE,'yA]K DR K2yL&CCME0I 02 THE LIEBEyJ PRODUCT &S SET EODTD8E02D4� It,' USER'S REMEDY IS BOEIMCl) TO FAIL, OF ITS BSSENTIAL PURPOSE BY & CQURT OF COMPETENT JURISDICTION, 1,i£8EKT'8REI8PUNSI87L>TY FOR PDDPEIDTY LOSS QB DAMAGE, 3B6�I, NOTEXCDCD NfT PRODUCT PUD(_BA35PRIC�. EXHIBIT [NNDEVEINTS8&LLU�D8q'AS8UMDANY LIABILITY POBlN0DS{], SPkCIAl )NC08NT&L8XENPLA8Y OR C0N80QDE0Tl&LDAMAGC@ OF ANY KIND 9/DA[O8YI�, lNCLlDlNG WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OB LOSS OPDA7&,nyH�} 2R8NYCL8]K4l8BAS2DU9O0T8B0RlDS0y CONTRACT, NBOJG8NC8,S?K[C�D�BlDT�,7ORIQR0TB£R\Y|S�. NO SALESPERSON, E,M PLO Y ET" OR ADTDQD}ZBDT0ADDJOORYARY78E?CRN8OF' THIS WARRANTY. Warranty ternis ITMY be modified, if at all, only by a writing signed by a Liebea officer, Liebert obligations under this warranty are conditioned upon Liebert dinely receipt offtill payment ofthe PrOdUCt pUrchase price and any other um000toduo. UCbodrouervuo the right tu supplement or change the terms of" this Warranty in any subsequent warranty offering |n User o,others. {u the event that any provision ofthis Warranty should be or becomes invalid and/or unenforceable dUring the warranty period, the remaining terms and provisions shall continue infull /brce and effect. User Shall uomp\ole the attached User Information Card and forward it/oLiohcr/wdbio,biuy(3O) doyoof'rocciptofthrLicheri product., This Warranty shall be governed by, and construed under, the laws n[thc Stale oYDbio.without rnfler oontw&ocnn@uo[|m,s provisions thereof, This Warranty represents the entire agreernent between Liebert and User with respect to the subJect. matter herein and supersedes all prior or coo1eopomun^nn oral or wdumn communicutioon, representations, understandings or ogreemuoIs relating to this subject, i EXHIBIT 2 Declaration of an Emergency File #: Requisition # Date: 10-29-15 Vendor: Tech Plan, Inc. Commodity /Service: 20 Ton Liebert Model DS070ADAIEI219A HVAC Unit Estimated expenditure for the above commodity or service: $ 62,690.00 Initial all entries below that apply to the proposed purchase, under the Purchasing Procedures as passed by City Council. (More than one entry may apply.) 1. Emergency situations, including procurements necessary to protect the public health or safety or in response to a public calamity; 2. A procurement necessary because of unforeseen damage to public equipment, machinery, or other property; Brief Description/Justification for exception: On October 29, 2015, it was determined by the Facilities Management Department that the existing HVAC unit located at Denton Municipal Electric's Operation's Building had reached a critical point of failure. This building also houses vital Technical Services equipment that requires heating/cooling to remain functional. The existing HVAC unit was able to be temporarily stabilized, but has lost 50% of the capacity, and one of the compressors had a complete failure, and was no longer serviceable. The existing HVAC unit is on a critical path of complete failure. The Liebert brand of equipment is an exact replacement to the existing unit, which will aid in a more timely installation process, and not require major building modifications. Tech Plan, Inc. is the sole source provider in the North Texas area for this brand of equipment, and as such no other quotes were obtained. In accordance with the provisions of Texas Local Government Code 252.022(a) (3), this repair is exempt from the standard competitive requirements, because of the unforeseen damage to public machinery, equipment, or other property. An emergency communication was routed to the City Manager — George Campbell and upon his approval Purchase Order 174704 was issued at 4:00 pm, on October 29, 2015. This action should alleviate further potential damage to City property. Respectfully Submitted by, t I. Director Date Approved by: EXHIBIT 2 Reviewed by: Date Purchasing Manager r Date' City Manager Reviewed By: Anita Burgess Date City Attorney This form must be attached to a purchase requisition if the expenditure is under $50,000. This form must be attached to a completed Agenda Information Sheet if the expenditure exceeds $50,000. Attached: City of Denton PO #174704 ax O Aw I ra CK ca CaY z L74 U 0 "o Z w OFD m Z via u z a. u u 0 x o z O im pi 91 E 0 u M tl I ar 0 >� 12 G°7 0 u U CY Z L"Hij I V 0 u FC Ca ct ra CD 21 CL r4 o O z L74 U 0 "o Z w OFD m Z via u z a. u u 0 x o z O im pi 91 E 0 u M tl I ar 0 >� 12 G°7 0 u U CY Z L"Hij I V 0 u FC Ca ct ra CD 21 CL r4 o C= Z aK ay 83 tiv 0 co M= E t 0 74 CD cp, "t P-9 Grp z F V3 eq rT IT r 6. app U 0 in en CA 0 x z I .1 ■ Z iLfal4x:l na .2 z 0 CJ I c7 to rq Z iLfal4x:l VQ 72 2 pl nr as E ca ti rea z 0 ar U3 U.1 ID CD C> - 0 VQ 72 2 pl nr as E ca ti rea ova Grob CCr rn GPi ci 0 cc w 10 C7, oN eq 73 r4 eq CA 40 de C4 CL W ■ aS ,,—° 0 CL uaTl rl �2 0 0 iG Cx s;!L Sh bBa r. 20 ol, Ten z lialtivi �2 0 0 iG Cx s;!L Sh bBa v. cy ao 0 U • I I rd vs • I I a O aA ea Z 0 41 z lflal� 2" 21 r I C. Edx z ea 2 .n 7 fU rd LQ a O aA ea Z 0 41 z lflal� 2" 21 r I C. Edx z ea 2 .n 7 fU ax 4 Kit CT CAA y 15 f2 Z Cc; > Zq J. ci el L4 c c en u P o ' w z 0 V c QO 0 ew u a, 5. F2 VA lu cra Del lei Sp wl 'cl w -0 Ul cz d C7 z 11'aliml CAA y 15 I I I z 08 0 rd CJ �m w ida u K CY 0 X III moY I r.n PJ 0 M re 0 m i ,u ag -0 F CN u n cV a w o Z JLIulnx:l uvz P 0 n aY CY va I CL 0 r- u F C6 r. r ®D dwA 'eja E 40 rA I I z 08 0 rd CJ �m w ida u K CY 0 X III moY I r.n PJ 0 M re 0 m i ,u ag -0 F CN u n cV a w o Z JLIulnx:l uvz P 0 n aY CY va I a w o Z JLIulnx:l uvz P 0 n aY CY va I Go CP 14 4 br I= a w u CD T t- At CT, cry PF, I E CL 0 40 p r4 t va 44 4u � um a U C, M X Z m z m u z es u 0 x o kn z 8. ao E�� 0 fi Cti itl Fr 1.1 0 ,u t8 cr , n r-Y m CY Cd lu di z' 0 c rz AA ez az MA llx:l S2 ry ca ga rpi an o rl Y Nei a. ;N E C S rq 000 z u 0 o x c fd IN E 0 12 ILI cv rid ea cs 0 c m 11 rq u m ru O Cv I 44 43 CY Z Z 11HIHVI 0 PJ mtC z I 0 SM C 0 bl m rZ EXHIBIT 3 ORDINANCE NO. AN ORDINANCE RATIFYING THE EXPENDITURE OF FUNDS BY THE CITY MANAGER FOR THE EMERGENCY PURCHASE AND INSTALLATION OF A TWENTY (20) TON HEATING, VENTILATION AND AIR CONDITIONING (HVAC) UNIT TO PROVIDE COOLING FOR CRITICAL DENTON MUNICIPAL ELECTRIC AND TECHNOLOGY SERVICES OPERATIONS AND 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 5984- AWARDED TO TECH PLAN, INC. IN THE AMOUNT OF $62,690). WHEREAS, state law and ordinance require that certain contracts requiring an expenditure or payment by the City in an amount exceeding $50,000 be by competitive bids, except in the case of public calamity where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or in case of unforeseen damage to public property, machinery or equipment or where the procurement is necessary to preserve or protect the public health or safety of the City's residents under Section 252 of the Local Government Code; and WHEREAS, the City Manager has recommended to the City Council that it is necessary to purchase goods or services due to the following emergency conditions outlined in the memorandum attached hereto, incorporated herein by reference; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby determines that there is a public calamity that makes it necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or to provide for unforeseen damage to public property, machinery or equipment, or to preserve or protect the public health or safety of the city's residents and by reason thereof, the following emergency purchases of materials, equipment, supplies or services, as described in the "Purchase Orders" referenced herein and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 5984 Tech Plan, Inc. $62,690 SECTION 2. Because of such emergency, the City Manager or designated employee is hereby authorized to purchase the materials, equipment, supplies or services as described in the Purchase Order on file in the office of the Purchasing Agent, and to make payment therefore in the amounts therein stated, such emergency purchases being in accordance with the provisions of state law exempting such purchases by the City from the requirements of competitive bids. EXHIBIT 3 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 5984 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 BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1156, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a professional services agreement for engineering and right -of -way acquisition services associated with the City of Denton FM 2181 Utility Relocations Project; providing for the expenditure of funds therefor; and providing an effective date (File 5973- awarded to Freese and Nichols, Inc. in an amount not -to- exceed $1,072,977). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION The Texas Department of Transportation (TxDOT) is widening FM 2181 from Lillian Miller south and east to the City limit border with Corinth (about 3.5 miles). This project will increase the largely two lane section to a six -lane divided arterial. Currently, TxDOT projects that the widening project will be bid in mid -2016 with a nine (9) month delay on project start. Plans adequate for the relocation of utilities have been provided to the various utility providers, and some utilities are already being moved. The City's water and wastewater utility assets within the affected roadway widening project are fairly extensive. In addition, the 2008 Water Distribution System Master Plan includes a 24" water line paralleling Teasley Lane, connecting to an existing 24 "/30" line in Lillian Miller and extending south and then west along Ryan Road as a 20" line (this line will extend west to Montecito Road and Country Club Road, then head south to Brush Creek Road and ultimately connect to the existing 20" line along Fort Worth Drive). Planning for the routing of the parallel line, and possibly its installation, as a part of the utility relocation work along FM 2181 is desired by the Water Utility Department. The City requested a preliminary design proposal from Freese and Nichols, Inc. for the professional services associated with the scoping and preliminary design for the relocation of the City's water and wastewater utility lines along this stretch of roadway, as well as the accommodation of the parallel 24" line. The total fee of $216,503.00 was recommended for approval by the Public Utility Board (PUB) on February 24, 2014 and subsequently approved by City Council on March 4, 2014. Freese and Nichols, Inc. delivered the preliminary schematic and cost estimate to City staff in September 2014. City of Denton Page 1 of 4 Printed on 11/12/2015 File #: ID 15 -1156, Version: 1 In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. Therefore, the City subsequently requested a comprehensive proposal from Freese and Nichols, Inc. for the professional services associated with the relocation of the City's water and wastewater utility lines along this stretch of roadway. The proposal was for right -of -way (ROW) acquisition services as well as professional engineering services. The total fee of $1,072,977.00 includes $192,310.00 for basic design services and $880,667.00 for special services. Basic services include the preliminary and final design phase for the relocations, bid phase services, and limited construction phase services. Special Services include: 1. Sub - Consultant Coordination - These services consist of the management of the survey, land acquisition and geotechnical engineering sub - consultants. The subtotal for this portion of the Special Services fee is $44,100.00. 2. Surveying - These services consist of boundary survey services and preparation of permanent and temporary easement exhibits for $78,485.00. 3. Land Acquisition Services - These services consist of pre- acquisition services (title research, surveyor coordination on ROW maps and legal descriptions, introductory letters and landowner bill of rights to property owners, detailed easement cost estimates and rights of entries), title services (title commitments, title insurance, curing exceptions, attending closings, recording information in County Clerk's office), initial appraisal, right of entry packets, negotiation services and condemnation support. The subtotal for this portion of the Special Services fee is $682,000.00. 4. Geotechnical Engineering Services - These services consist of subsurface exploration (borings), laboratory services (tests) and engineering services (interpretation and recommendations). The subtotal for this portion of the Special Services fee is $24,932.00. 5. Subsurface Utility Engineering Services - These services consist of the horizontal, and as applicable vertical, location of utilities within the FM 2181 corridor for design coordination. The subtotal for this portion of the Special Services fee is $51,150.00. The preliminary opinion of probable construction cost for the project is approximately $7.5 million dollars, of which roughly 75% is attributable to water utility relocations and 25% is attributable to wastewater utility relocations. ROW acquisition is projected to cost approximately $6.82 million dollars, of which 91% is preliminarily attributable to water utility relocations and roughly 9% is preliminarily attributable to wastewater utility relocations. All of these numbers will be verified as the design project progresses, and the percentages may well be adjusted. It is worth noting that, as of the preparation of the preliininary opinion of probable cost, roughly 75% of the overall water costs and 15% of overall wastewater costs appear to be reiinbursable by the State. Again, these numbers will be adjusted as the design is advanced and may well change. Basic services represent approximately 2.6% of the projected construction cost (this does not include the previously approved preliminary design contract amount). The total design services amount, less the land acquisition services, is a total of $390,977.00. This subtotal represents approximately 5.2% of the projected construction cost. Staff referenced two sources for comparison of fees based on a percentage of construction: The American Society of Civil Engineers (ASCE) Manual No. 45 and Consulting Engineers Council of Texas (CEC -T) curves of median compensation. From ASCE Manual No. 45, the design fee is projected at approximately 7% of the preliminary opinion of probable construction cost and total fee is projected at approximately 18% (this curve assumes projects of a very complex nature). From CEC -T curve of median compensation "A ", the design fee is projected at approximately 6.2% of the preliminary opinion of probable construction cost. City of Denton Page 2 of 4 Printed on 11/12/2015 File M ID 15 -1156, Version: 1 The fee amount for land acquisition services of $682,000.00 represents approximately 10% of the projected total cost of approximately $6.82 million dollars for easements. Using the percentages of construction costs set forth above, out of the total design services subtotal amount of $390,977.00, $293,233.00 is payable by Water Utilities and $97,744.00 is payable by Wastewater Utilities. Using the percentages of land acquisition costs set forth above, of the total land acquisition services subtotal of $682,000.00, $620,620.00 is payable by Water Utilities and $61,380.00 is payable by Wastewater Utilities. Therefore, the portion of the total fee attributable to Water Utilities is $913,853.00, and the portion of the total fee attributable to Wastewater Utilities is $159,124.00. It is worth noting that the approximate projected reimbursable amount to Water Utilities from TxDOT for construction and easement acquisition is approximately $9.14 million dollars. The approximate projected reimbursable amount to Wastewater Utilities from TxDOT for construction and easement acquisition is approximately $0.43 million dollars. In addition to construction and easement reimbursable amounts, staff and consultant time spent on the design of the reimbursable utilities and easements is also reimbursable from TxDOT. If these projections hold true through the design phase, the net overall construction cost for Water Utilities could be as low as approximately $2.98 million dollars and for Wastewater Utilities could be as low as approximately $1.60 million dollars. If these projections hold true, the net overall easement cost for Water Utilities could be as low as approximately $1.80 million dollars and for Wastewater Utilities could be as low as approximately $0.44 million dollars. The reimbursable amounts in the design fees to each utility will be tracked separately and submitted to TxDOT for reimbursement. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 26, 2015, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award a Professional Services Agreement to Freese and Nichols, Inc. for engineering and right -of -way acquisition services associated with the City of Denton FM 2181 Utility Relocations Project in an amount not - to- exceed $1,072,977. PRINCIPAL PLACE OF BUSINESS Freese and Nichols, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT Freese and Nichols is prepared to begin the services immediately, with the goal of completing design and easement acquisitions in advance of the TxDOT portion of the project, currently scheduled to bid in mid -2016 with a six to nine month interval from bid to construction start. City of Denton Page 3 of 4 Printed on 11/12/2015 File #: ID 15 -1156, Version: 1 FISCAL INFORMATION This project will be funded from Water Utilities Capital Fund account 630081523.1360.21100 in the amount of $913,853 and Wastewater Utilities Capital Fund account 640052541.1360.21100 in the amount of $159,124. Requisition 126618 has been entered in the Purchasing software system. FYHIRITC Exhibit l: Public Utilities Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Frank Payne at 349 -8946. City of Denton Page 4 of 4 Printed on 11/12/2015 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 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD October 26, 2015 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, October 26, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chairman Randy Robinson Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA B. PUB15 -046 Consider recommending approval of a Professional Services Agreement for Architect or Engineer between the City of Denton and Freese and Nichols, Inc. in the amount of $1,072,977.00 for Engineering Services associated with FM 2181 Utility Relocations project. Board Member Russell pulled this item to ask if a local title company would be used. Frank Payne, City Engineer, answered this was bid as a turn -key job, there was no specifications of who the contractor uses. Russell would like local used as much as possible. Board Member Russell motioned to approve this item with a second from Board Member Parker. Vote 6 -0 Adjournment 9:52 a.m. EXHIBIT 2 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 ENGINEERING AND RIGHT -OF -WAY ACQUISITION SERVICES ASSOCIATED WITH THE CITY OF DENTON FM 2181 UTILITY RELOCATIONS PROJECT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5973— AWARDED TO FREESE AND NICHOLS, INC. IN AN AMOUNT NOT -TO- EXCEED $1,072,977). 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 Freese and Nichols, Inc., to provide professional engineering services for the FM 2181 Utility Relocations Project, 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 5973 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 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 3 THE STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS 'AGREEMENT is made and entered into as of the day of , 2015, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" or "City" and Freese and Nichols, Inc., with its corporate office at 4055 International Plaza, Suite 200, Fort Worth, Texas 76109 hereinafter called "Architecture /Engineering Professional" or "FNI," acting herein, by-and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF ENGINEERING PROFESSIONAL Freese and Nichols, Inc. (FNI) will provide the following civil engineering services to the City of Denton, Texas (Owner): design and engineering for the relocations of utilities along the proposed TxDOT Right -of -Way for FM2181 from Windriver Lane /Teasley to Corinth city limits (TxDOT Stations 10111 +39 to 10298 +00). This Scope of Services outlines the-proposed engineering services that will be provided in connection with relocation of existing water, wastewater and force main lines along FM2181 at various locations from Windriver Lane /Teasley to Corinth city limits, as more fully described in Attachment A, Scope of Services. Other services that may be provided as additional services in support of the project are also described in Attachment A. SECTION 2 COMPENSATION The total project compensation is One Million Seventy -Two Thousand Nine Hundred and Seventy -Seven Dollars ($1,072,977). The Owner shall compensate FNI as follows: 2.1 FOR BASIC SERVICES 2.1.1 For Basic Services and related Expenses for Article I, the total compensation shall be a lump sum fee of One Hundred Ninety -two Thousand Three Hundred Ten Dollars ($192,310). Included in this lump sum fee is Five Thousand Two Hundred and Twenty Dollars ($5,220) of reimbursement expenses for mileage, printing, plotting, and binding during the project. Page 1 EXHIBIT 3 2.1.2 For Special Services and related Expenses for Article II, the compensations shall be the following not to exceed fees: 2.1.2.a Sub - Consultant Coordination = $44,100 (Including $933 in reimbursement expenses) 2.1.2.b Easement Exhibits = $78,485 2.1.2.c Land Acquisition Services = $682,000 2.1.2.e Geotechnical Engineering Services = $24,932 2.1.2.f Subsurface Utility Engineering Services = $51,150 2.1.3 Additional services, if any, shall be approved in writing and authorized in advance by the OWNER and shall be performed and conducted for fees that are negotiated as appropriate. Progress payments for Basic Services shall be paid monthly on the basis of the Schedule of Charges completed at the end of the month. 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services will be based on the attached schedule of charges on page CO -l. SECTION ,w3 ENTIRE AGREEMENT This Agreement expressly includes this three (3) page Agreement, together with the following documents which are attached hereto and are incorporated herewith for all purposes: Exhibit "A" (Scope of Services of FNI) through CO -1. 2. The City of Denton General Conditions to Agreement for Architectural or Engineering Services. If a conflict should arise between Attachment "A" and the City of Denton General Conditions to Agreement for Architectural or Engineering Services, then the City of Denton General Conditions to Agreement for Architectural or Engineering Services shall prevail. Page 2 EXHIBIT 3 This Agreement is signed by the parties hereto effective as of the date first above written, ATTEST: JENNIFER WALTERS, CITY SECRETARY wo APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: ATTEST: By: _411K6 Page 3 "OWNER" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation wa GEORGE C. CAMPBELL CITY MANAGER "FNI" FREESE AND NICHOLS- IN A Texas Corpol Goff "" ,- By- Are, , EXHIBIT 3 ATTACHMENT A SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER FM 2181 Utility Relocations Final Design GENERAL: Freese and Nichols, Inc. (FNI or CONSULTANT) will provide the following civil engineering services to the City of Denton, Texas (OWNER): design and engineering for the relocations of utilities along the proposed TxDOT Right -of -Way for FM2181 from Windriver Lane /Teasley to Corinth city limits (TxDOT Stations 10111 +39 to 10298 +00). This Scope of Services outlines the proposed engineering services that will be provided for the final design in connection with relocation of existing water, wastewater and force main lines along FM2181 at various locations from Windriver Lane /Teasley to Corinth city limits. The consultant services are based upon Owner provided TxDOT electronic files of the proposed improvements to FM2181 and existing survey and record drawing information. All preliminary conflict identification was based on the best available record data information, but the CONSULTANT in no way warrants that additional conflicts will not be discovered due to inaccuracies in the record data or changes to the TxDOT improvements. The Scope of Services will provide relocation design and one (1) set of construction contract documents for the relocations of the following locations, along with two (2) separate set of plans for TxDOT utility permit and the TxDOT reimbursement package: a. 20 -inch Water Line: A new 20 -inch water main will be designed from approximately Windriver Lane to Robinson Road (Approx. TxDOT Sta 10112 +50 to Sta 10181 +50). This section contains an existing 20 -inch water line and sections of an existing 8 -inch water line that will be in conflict with the TxDOT roadway, storm drain, and sound wall improvements. The new 20 -inch water line will also be re- routed west and south of the development on the southwest corner of FM2181 and Windriver. The new 20 -inch water line will also cross FM2181 in three (3) locations to avoid congested areas and existing ponds adjacent to FM2181. b. 8 -inch Wastewater Line: A new 8 -inch wastewater line will be designed from approximately Sta 10119 +00 to Sta 10125 +00 and will tie into the existing wastewater line in Bent Oaks Drive. There will also be an 8 -inch wastewater crossing designed with casing pipe at Bent Oaks Drive. The existing 8 -inch wastewater line is in conflict with TxDOT paving and drainage structures. C. 12 -inch and 8 -inch Force Main Crossing: Two (2) crossings will be designed for a new 12 -inch crossing at Windriver and Teasley, and a new 8 -inch crossing at Teasley and Bent Oaks Drive. These crossings are in conflict with TxDOT improvement elevations. d. 18 -inch Water Line: A new 18 -inch water line will be designed from Robinson Road to Hickory Creek Lane (TxDOT Sta 10181 +50 to Sta 10222 +00). The new 18 -inch line will be replacing existing 8 -inch and 18 -inch water lines that are in conflict with TxDOT roadway and storm drain improvements. e. 12 -inch Wastewater Line: A new 12 -inch wastewater line will be designed near TxDOT Sta 10204 +50. This line will be a re -route around a proposed TxDOT headwall and box culvert crossing of FM2181. f 24 -inch Force Main: A new 24 -inch force main line will be designed from Hickory Creek Lane to the south of Leatherwood Lane (Approximate TxDOT Sta 10223 +00 to Sta Attachment A -1 EXHIBIT 3 10267 +50). The existing 24 -inch force main is in direct conflict with TxDOT storm drain and roadway improvements. A portion of the new force main will be re- routed south and west around the development on the southwest corner of FM2181 and Hickory Creek Lane. The proposed force main will also have to cross FM2181 in three (3) locations to avoid congested developed areas and to connect back to the existing force main line. 12 -inch Water Line: A new 12 -inch water line will be designed to replace an existing section of 12 -inch water line that dead ends at approximately TxDOT Sta 10232 +00. The line will'be extended to an existing line in Lighthouse Drive near TxDOT Sta 10235 +50.' h. 8 -inch Water Line: A new water line will be designed on the west side of FM 2181 from TxDOT Sta 10258 +00 to Sta 10269 +00. This line is to replace the water line that provides service to properties on the west side of FM2181 at this location that will be abandoned as part of TxDOT's improvements. Two (2) crossings will be needed of FM2181 for the new 8 -inch water line to tie into the existing 12 -inch water line on the east side of FM2181. i. 12 -inch Water Line: A new water line will be designed from TxDOT Sta 10273 +00 to Sta 10296 +00. The new line will replace an existing 12 -inch water line that will be in conflict with TxDOT storm drain and roadway improvements. The new water line will also cross FM 2181 to avoid existing developments adjacent to FM2181. j. 12 -inch Water Line Crossings: Ten (10) 12 -inch water line crossings will be designed to cross FM2181 with steel encasement to tie the new water lines in with existing distribution lines that were formerly tied into lines that will be abandoned with the improvements along FM2181. k. 8 -inch Wastewater Line: a new 8 -inch wastewater line will be designed near TxDOT Sta 10292 +00 to Sta 10294 +00. This line will be designed as a re -route of an existing wastewater line to avoid TxDOT storm drain improvements in conflict with the existing wastewater line. Refer to the 15- percent schematic plans for the above mentioned conflicts along FM2181 sent to the City of Denton on September 14, 2014, titled 11DTN13289 15% SET 090414 ". Color -coded plans were also sent to the City of Denton for TxDOT review on September 24, 2014, titled "COLOR CODED 15% SET ". ARTICLE I BASIC SERVICES: FNI shall render the following professional services in connection with the development of the Project: TASK A: Preli gipary and Final Desi n The CONSULTANT will schedule, prepare agenda and attend one (1) kick -off meeting with the OWNER to discuss 15- percent review plans and the reimbursable documentation. 1 Once the 15- percent design submittal has been reviewed and discussed by all parties, the CONSULTANT will move forward and prepare a 50% design submittal that will be reflective of the project bid documents. The submittal will include construction drawings at a scale of 1 " =40" horizontal and 1 " =4" vertical, one (1) full size (22 "04 ") and four (4) half size (11 "x17) construction drawings, specifications, contract documents, bid proposal, updated schedule and updated opinion of probable construction cost. These items will be submitted to the OWNER at the 50% submittal date. In addition, the submittal will include electronic copies of the construction drawings in pdf and CAD format. Typical sheets used in the project will be. ►SID EXHIBIT 3 a. Cover Sheet b. General Notes C. Project layout control (2- sheets) d. Utility Conflict Plan and Profile sheets (approx. 32- sheets) e. Construction Details (approx. 6- sheets) At the 50% design submittal the CONSULTANT will also prepare two (2) separate sets of (11"x17") drawings that will be submitted to TxDOT for their review. One set of plans will be used for the reimbursement package submittal to TxDOT and the other set will be used for the utility permitting application process for TxDOT. A formal reimbursement request will not be made to TxDOT at this time. Both sets will be sent to TxDOT for informational purposes and for their coordination efforts with other entity relocations along FM2181. 4. CONSULTANT will attend one (1) coordination meeting with TxDOT and OWNER personnel to discuss and coordinate TxDOT review and updated roadway design in relation to the City of Denton's 50% utility relocation plan. 5. CONSULTANT will also electronically distribute the 50% design submittal to the franchise utility companies with infrastructure along FM2181 for review and information. 6. Upon receipt of the OWNER's comments on the 50% submittal, one (1) review meeting will be held to discuss the review comments and recommendations based on the 50% plans. Following the 50% review meeting, the CONSULTANT will continue preparing 90% documents based on review comments and design changes resulting from the 50% review meeting. The submittal will be reflective of the project bid documents and will include four (4) sets of half size (11 "x 17 ") and one (1) full size (22 "04 ") construction drawings, specifications, contract documents, bid proposal, updated schedule and updated opinion of probable construction cost. In addition, the submittal will include electronic copies of the construction drawings in pdf and CAD format. At the 90% design submittal the CONSULTANT will also prepare two (2) separate sets of (11 "x17") drawings that will be submitted to TxDOT for their review. One set of plans will be used for reimbursement submittal to TxDOT and the other set will be used for the utility permitting application process for TxDOT. No formal reimbursement request will be made to TxDOT at this time. CONSULTANT will also electronically distribute the 90% design submittal to the franchise utility companies with infrastructure along FM2181 for review and information. 10. CONSULTANT will attend one (1) coordination meeting with TxDOT and OWNER personnel to discuss and coordinate TxDOT review and updated roadway design with relation to the City of Denton's 90% utility relocation plan. 11. Upon receipt of the OWNER's comments on the 90% submittal, one (1) review meeting will be held to discuss the review comments and recommendations based on the 90% plans. ►:�3c EXHIBIT 3 12. Once the 90% comments have been approved by the OWNER, the CONSULTANT will prepare "Final" documents. The submittal will include four (4) sets of half size (11 "x17") and one (1) full size (22 "04 ") construction drawings, specifications, contract documents, bid proposal, updated schedule and updated opinion of probable construction cost. In addition, the submittal will include electronic copies of the construction drawings in pdf and CAD format. 13. In addition, the CONSULTANT will prepare "Issued for Bid" sealed documents to be used for bid phase. Four (4) sets of half size'(11 "x17 ") and one (1) set of full size (22 "04 ") construction drawings, specifications, contract documents, bid proposal and opinion of probably construction cost will be provided to the OWNER during the bidding process. In addition, the submittal will include electronic copies of the construction drawings in pdf and CAD format. 14. Once the "Final" comments have been approved by the OWNER, the CONSULTANT will prepare the TxDOT reimbursement package including one (1) "Final" SEALED drawings for the reimbursable package submittal to TxDOT delivered by the OWNER. The CONSULTANT will also prepare one (1) "Final" SEALED set of documents to TxDOT delivered by the ONWER that will be used for the utility authorization permit needed for construction within TxDOT right of way (different set of plans form the reimbursement package). Any additional submittals to TxDOT for the reimbursement package or the utility permit will be performed as a Special Service. Any permit or application fees will be the responsibility of the OWNER. TASK C: Bid Phase Upon completion of the design services and approval of "Final" drawings and specifications by the OWNER, the CONSULTANT will proceed with the performance of services in the bid phase as follows: Assist OWNER in securing bids. Issue a Notice to Bidders to prospective contractors and vendors listed in CONSULTANT's database of prospective bidders, and to selected plan rooms. Provide a copy of the Notice to Bidders for the OWNER to use in notifying construction news publications and publishing appropriate legal notice. The cost for advertisement in publications shall be paid by the OWNER. Final plan size to be 22" x 34" for reproducible copies to 11" x 17". 2. Provide Contract documents to be distributed for bidding purposes using website provided by the OWNER. Contract Documents will be made available for download or viewing free of charge to prospective bidders. Printed copies of the Contract Documents will be made available for purchase by bidders at the cost of reproduction. City Standard Details will be referenced in the construction plans. If specific details are required for the project, they will be included with the construction drawings. 4. Assist OWNER by responding to questions and interpreting bid documents. Prepare and issue addenda to the Bid Documents to plan holders if necessary. Assist OWNER in the opening, tabulating, and analyzing the bids received. Review the qualification information provided by the apparent low bidder to determine if, based on the Attachment A -4 EXHIBIT 3 information available, they appear to be qualified to construct the project. Recommend award of contracts or other actions as appropriate to be taken by the OWNER. 6. Assist OWNER in the preparation of Construction Contract Documents for the construction contract. Provide ten (10) sets of Construction Contract Documents, which include information from the apparent low bidder's bid documents, legal documents, and addenda bound in the documents for execution by the OWNER and construction contractor. Distribute five (5) copies of these documents to the contractor with a notice of award that includes directions for the execution of these documents by the construction contractor. Provide the OWNER with the remaining five (5) copies of these documents for use during construction. Additional sets of documents can be provided as an additional service. In addition, provide Adobe PDF set and the AutoCAD drawing files of the final plans along with an Adobe PDF set of the final contract documents and specifications. Furnish contractor five (5) copies of the drawings and specifications for construction pursuant to the General Conditions of the Construction Contract. TASK D: Construction Phase Upon completion of the bid or negotiation phase services, the CONSULTANT will proceed with the performance of construction phase services as described below. The CONSULTANT will endeavor to protect the OWNER in providing these services. However, it is understood that the CONSULTANT does not guarantee the Contractor's performance, nor is the CONSULTANT responsible for supervision of the Contractor's operation and employees. The CONSULTANT shall not be responsible for the means, methods, techniques; sequences or procedures of construction selected by the Contractor, or any safety precautions and programs relating in any way to the condition of the premises, the work of the Contractor or any Subcontractor. The CONSULTANT shall not be responsible for the acts or omissions of any person (except its own employees or agents) at the Project site or otherwise performing any of the work of the Project. Detailed daily construction inspection will be performed by OWNER's personnel. Construction services provided by CONSULTANT will include the following: Assist the OWNER in conducting pre construction conference with the Contractor, review construction schedules prepared by the Contractor pursuant to the requirements of the construction contract. 2. Revise the construction drawings in accordance with the information furnished by construction contractor(s) reflecting changes in the Project made during construction. Two (2) sets of prints of "Record Drawings" shall be provided by the CONSULTANT to the OWNER (1 bond set, 1 Mylar set). In addition, the submittal will include electronic copies of the construction drawings in pdf and CAD format. UMM EXHIBIT 3 ARTICLE II SPECIAL SERVICES A. Survey, Land Acquisition, SUE, and Geotechnical Sub - Consultant Coordination - Upon agreement of the preliminary alignment the survey consultant, land acquisition consultant, SUE consultant, and geotechnical consultant will be released to gather information. CONSULTANT will coordinate and manage the survey, land acquisition, SUE and geotechnical consultants, and meet with each on regular scheduled intervals (minimum monthly meetings, or as referenced in the sub - consultant's scope of services) for progress, review, and updates. CONSULTANT will update the OWNER with the progress and be the main communicator between the OWNER and the sub - consultants. The land acquisition consultant will also have direct communication with the OWNER for negotiations and acquisition of easements. The scope of work of the survey, land acquisition, SUE, and geotechnical consultants is described in the SPECIAL SERVICES section of this Exhibit. B. Property Mapping and Easement Documents (Services to be provide under sub - agreement with Spooner and Associates) Spooner and Associates (S &A) will provide professional surveying services for the FM 2181 Utility Relocation Project. The scope of work of the land surveyor shall be to supply all supervision, technical labor, equipment, services, tools, consumables, insurance, and pay any applicable sales /use taxes, and all other things required to perform land surveying in accordance with technical requirements specified in this scope of services. Scope: Property /Right -of -Way Survey General Project details — Survey will horizontally and vertically locate visible surface features within the project area as shown on the project exhibit provided to S &A via email on 11 -3 -14. - Property corners and other pertinent property and right -of -way markers will be located along the length of the project so that a property /right -of -way base map can be produced. - Proposed easement acquisitions, as designated by the project Engineer, will be prepared per City of Denton Engineering Standards. Right of Entry: The Surveyor will coordinate with the project Engineer to obtain right -of -entry (ROE) for mapping on this project. These services will be provided on the Surveyor's behalf prior to starting. Right —of -Way and Property: S &A survey will locate and tie existing right -of -way, property lines and easements, including type size, volume and page, where applicable. S &A will show lot, block, abstract number, adjacent street names and property address. City and County boundaries will be shown where applicable. Property owner and business names will be shown on the survey. TxDOT Maintained Roadways: Survey will include an alignment(s) that coincides with original Texas Department of Transportation (TxDOT) alignment stationing for those roadways within the project limits maintained by TxDOT. The Surveyor will provide an electronic PDF of Attachment A -6 EXHIBIT 3 TxDOT documents used to determine the original station. TxDOT monuments will be located for portions of the project located on or adjacent to TxDOT maintained facilities. Methods and Precision Basis of Control: - The existing TxDOT project control system will be used to establish horizontal and vertical values. Coordinates shall be reported with a precision of +/- 0.01 feet. Deliverables: Property /Right -of -Way Survey Base Map - CAD Format: AutoCAD Civil3D 2013 format CAD files - Base Map: An electronic base map at 1:1 scale (base unit US Survey Foot) containing pertinent topographic field data will be prepared. - Text will be oriented with North being true reading West to East. - The base map shall be in AutoCAD DWG format. - NCTCOG imagery will be used as a background in our deliverable. - PDF electronic copies of all project research used to workup the project mapping which includes but is not limited to plats, deeds, right -of -way maps and provided utility maps. - PDF copy of all field notes. - PDF copy of the survey base map is not included. Point File: A comma delimited ASCii file showing point number, northing, easting, elevation and description shall be provided for all data collected on this project. Field Sketches and Site Pictures: Applicable field sketches and site photographs depicting any special field information shall be provided in digital form. Easement Exhibits General Scope: The Surveyor will prepare metes and bounds descriptions with accompanying map exhibit for permanent and temporary instruments on an as needed basis. Deliverables - One electronic executed PDF of the complete instrument for each parcel. - Three original hard copies of the complete instrument for each parcel. Easement Exhibit Assumptions: - Instrument Format: All instruments will strictly follow controlling jurisdiction guidelines and procedures for the preparation of instrument documents. - Design changes: All changes due to re- design after the initial submittal for each phase will be invoiced back to the CONSULTANT at an hourly cost. - GRID coordinates: All exhibits will include NAD83 GRID coordinates for the point of beginning, horizontal scaling factors and basis of bearings information. - Separate exhibits: Permanent and Temporary exhibits will be separated for each instrument. - Permanent Instruments will include a full metes and bounds description with accompanying plat exhibit. - Temporary Instruments will include a limited area description with accompanying plat exhibit. Staking of ROW/Easement Corners: The Surveyor will stake the instrument corners once final documents have been approved by the owner /client. Attachment A -7 EXHIBIT 3 All easement corners will be monumented in the field with appropriate survey monumentation. Easement limits will be staked at a minimum of 200' intervals with 36" witness laths with the appropriate identifying marks. If Project Assumptions: Property /Right -of -Way Survey Abstracting Services: This scope does not include abstracting services or title work for property, easement and right -of -way line workup. Current platting and /or deed information available at the County will be used for this project. Additional Project Footage: This scope includes property and right -of -way mapping of FM 2181 from Wind River Lane South to Primrose and the workup of approximately 70 easement instruments. If any additional footage or width beyond these values is required, additional compensation may be requested as an additional service. Construction Staking Services: This scope does not include staking of any kind for the construction of this project. Project control will not be refreshed prior to the commencement of construction. Topographic Mapping: This scope does not include topographic mapping. Only property right - of -way pertinent features will be identified in the field. C. Land Acquisition Services (Provided under subagreement by The Norfleet Group, LLC) The scope of land acquisition services includes up to forty (40) individual tracts for easement acquisition purposes. The services also include providing condemnation support for up to sixteen (16) tracts. The services include up to forty (40) three (3) hour meetings with one partner of the land acquisition firm in attendance. The detailed scope of services for land acquisition is listed below: Pre - Acquisition Services a) Hire a title company /provide in -house staff to provide preliminary ownership and easement information. (Provide agents to research preliminary ownership and easement information. Hire a title company as needed for the acquisition of properties that will be purchased in fee.) b) Work with surveyor in development of right of way maps and legal descriptions of needed property rights. c) Provide detailed right of way cost estimates on a parcel by parcel basis. d) Assist FNI in preparing and obtaining any Rights of Entry necessary for surveying, geotechnical investigations and environmental services as needed. 1 Title Services Attachment A -8 EXHIBIT 3 a) Research title and provide preliminary ownership information to title company. Review preliminary title commitment (Schedules A, B & C) or preliminary title search information provided by the title company for all properties. b) Secure title commitments and updates in accordance with insurance rules and requirements for parcel payment submissions for properties which will be acquired in fee simple and for ROW easements c) Secure title insurance for all parcels, insuring acceptable title in the name of the City of Denton. Cure all exceptions on Schedule C, when applicable. Written approval by the City of Denton will be required for any exceptions to coverage. d) Attend closings and provide closing services in conjunction with Title Company for all tracts. e) Record all original instruments immediately after closing at the respective County Clerk's Office. i.) Research title and provide Condemnation Title Report to legal counsel for property rights that will be acquired through Eminent Domain. (See item 6. a. Below) 3. Initial Appraisal (Proposed: Integra Realty Resources) a) Appraiser must be approved by the City of Denton. b) Secure written permission from the owner to enter the property from which land is to be acquired. If Agent, after diligent effort, is unable to secure the necessary letter of permission from the property owner, a waiver must be obtained, in writing from the City of Denton. Maintain permission letters with appraisal reports. c) Prepare and conduct personal pre- appraisal contact with interest owner(s) for each parcel. d) Contact property owners or their designated representative to offer opportunity to accompany the appraiser on the appraiser's inspection of subject property. Maintain record of contact in file. e) Prepare draft appraisal report. "Draft" stamp to remain on appraisal until the city has reviewed and approved the appraisal and the initial offer is made. f) Finalize complete appraisal report for each parcel to be acquired utilizing a format approved by the City of Denton. These reports shall conform to the City of Denton policies and procedures along with the USPAP. g) As necessary, prepare written notification to the City of Denton of any environmental concerns within the needed right of way to be acquired which could require remediation. Attachment A -9 EXHIBIT 3 h) All completed appraisals will be administratively reviewed and approved by the City of Denton. i) As necessary, the appraiser will appear and or testify as an Expert Witness in eminent domain proceedings and be available for pre- hearing or pre -trial meetings as directed by the City of Denton. 4. Initial Landowner Contact a) Prepare packets to include Landowner Bill of Rights, maps and paperwork to be executed. b) Mail merge ROE letters and labels for envelopes and file folders. The agents with prepare and stuff envelopes for out of town owners or owners who have indicated that they want to receive all of their initial information via certified mail, return receipt requested. c) The agent will initiate negotiator and contact logs and attend landowner meetings for ROE documents. The agent will research additional contact information for nonresponsive landowners. Negotiation Services a) Analyze appraisal reports and confine approved value prior to making offer for each parcel. b) Analyze preliminary title report to determine potential title problems and propose methods to cure title deficiencies. c) Prepare the initial offer letter and any other documents required or requested by the City of Denton in a form acceptable to the City of Denton. d) Contact each property owner or owner's designated representative and present the written offer in person where practical. When owners do not wish to have offers delivered in person, they will be mailed via certified mail with return receipt for documentation of delivery /receipt. Maintain follow -up contacts and secure the necessary instruments upon acceptance of the offer for the closing. e) Provide a copy of the appraisal report for the subject property exclusively to the property owner or authorized representative at the time of the offer. Maintain original signed Receipt of Appraisal. f) Respond to property owner inquiries verbally and /or in writing within two business days. g) Prepare a separate negotiator contact report for each parcel file for each contact. Attachment A- 10 EXHIBIT 3 h) Maintain parcel files of original documentation related to the purchase of the real property or property interests /acquisition of the Easement for Right of Way. i) Present counteroffers in a form as directed by the City of Denton. Transmit any written counteroffer from property owners including supporting documentation, and Agent's recommendation with regard to the counteroffer. j) Prepare final offer letter as necessary. k) Appear and provide Expert Witness testimony when requested. 6. Condemnation Support a) Pre - Hearing Support (i) Upon receipt of a copy of the final offer, research and produce an updated "Condemnation Limited Title Report" (search parameters set by City of Denton and /or outside legal counsel). (ii) Prepare a condemnation package as directed by the City of Denton and deliver the package to the City of Denton's designee or legal counsel. (iii) Upon notification from the City of Denton request the update of appraisal. 7. Project Administration a) Maintain current status reports of all parcel and project activities and provide monthly or as requested to FNI and the City of Denton. b) Participate in project review meetings as determined by FNI and the City of Denton. c) Provide copies of all incoming and outgoing correspondence as generated if requested. d) Maintain copies of all correspondence and contacts with property owners. e) Update database with current status information and documentation. D. Geotechnical Engineering Services (Provided under subagreement by CMJ Engineering, Inc.) SUBSURFACE EXPLORATION As requested, experienced drillers and technicians will evaluate subsurface conditions with a total of seventeen (17) sample borings (outside of pavement) extending to a depth of 20 feet. Attachment A -1 I EXHIBIT 3 The field personnel will drill the borings using truck - mounted equipment. Cohesive and non - cohesive soil samples will be obtained using 3 -inch diameter Shelby tube samplers and 2 -inch diameter standard split -spoon samplers, respectively. A soils logger will extrude the samples in the field, check the samples for consistency with a hand penetrometer, carefully wrap them to preserve their condition, and return them to the laboratory for testing. A log of each boring will be prepared to document field activities and results. CMJ's personnel will stake the boring locations using normal taping procedures. Approximate locations of the borings will be shown on the plan of borings. Precise surveying of boring locations and elevations is not included in the cost estimate. These services may be provided as Additional Services upon request. At the completion of drilling operations, boreholes will be backfilled with drill cuttings and plugged at the surface by hand tamping. 2. LABORATORY SERVICES Considering the planned utility improvements, anticipated soil conditions and geology, laboratory tests will be required for classification purposes, and to determine strength characteristics. The following types of tests are therefore recommended: a. moisture content and soil identification b. liquid and plastic limit determinations C. unconfined compression tests on soil d. unit weight determinations The specific types and quantities of tests will be determined based on geologic conditions encountered in the borings. 3. ENGINEERING SERVICES An engineering report will be prepared to present the results of the field and laboratory data together with our analyses of the results and recommendations. We will provide two copies of the report and an electronic copy. The report will address: 1. general soil and ground water conditions 2. presence of unusual materials at boring locations 3. comments about general excavatability of on -site soils and rock Items other than those specified above, which are revealed by these studies or are necessitated by a change in project scope, may require revised field, laboratory, and engineering services. These services, if required and requested, will be performed as Additional Services. Attachment A -12 EXHIBIT 3 E. Subsurface Utility Engineering (Services to be provided by sub - agreement with Lamb - Star Engineering, LLQ: For this project, Subconsultant will provide QL "B" and QL "A" SUE services in the areas specified by Freese and Nichols. QL "B" — Two - dimensional (x, y) information obtained through the application and interpretation of non - destructive surface geophysical methods. Also known as "designating" this quality level provides the horizontal position of subsurface utilities within approximately one foot. - Subconsultant will designate existing utilities, including services, along FM 2181 at 25 locations depicted on the plan sheets provided by FNI. The QL "B" will include overhead utilities. We anticipate encountering the following existing underground utilities: electric, water, gas, sanitary sewer, fiber optic and telephone. Storm drain will NOT be included. L "A" — Also known as "locating ", this quality level provides precise three dimensional (x,' y, z) information at critical locations by exposing specific utilities. Non - destructive vacuum excavation equipment is used to expose the utilities at specific points which are then tied down by survey. - The QL "A" will involve excavation of test holes on utilities that are in potential conflict with the proposed work. For this proposal, we are assuming 19 QL "A" test holes based upon the plan sheets provided. SUE Subconsultant will perform all surveying that is required for collection of SUE field data. FNI will provide subconsultant with survey control and a base map /topographic file in CAD format for use in preparing the deliverables. It has been our experience in this part of North Texas that test hole excavation frequently encounters rock strata. SUE Subconsultant will do everything feasible to non - destructively expose utilities requested for test holes. However we cannot ensure that vacuum excavation will be successful on all test holes if significant rock layers are encountered. If this becomes an issue SUE subconsultant will communicate the locations with FNI immediately to discuss options. Also, for PVC lines located under pavement it may be necessary to excavate additional test holes to locate the line. Designating Procedures Prior to beginning field designating activities, subconsultant's field manager will review the project scope of work and available utility records. Once these initial reviews are complete, the field manager and technicians will begin designating the approximate horizontal position of known subsurface utilities within the specified project limits. A suite of geophysical equipment (electromagnetic induction, magnetic) will be used to designate metallic /conductive utilities (e.g. steel pipe, electrical cable, telephone cable). Non - metallic /non- conductive utilities will be designated using other proven methods, such as rodding, and probing. Where access is available, a sonde will be inserted into the utility line (e.g. PVC gravity sewer pipe) to provide a medium for signal transmission, which can then be designated using geophysical equipment. In instances where access is not available, (e.g. pressurized PVC water line), subconsultant Attachment A -13 EXHIBIT 3 personnel will attempt to designate the utility by probing. Subconsultant personnel will utilize vacuum excavation equipment outfitted with a high - pressure water lance to conduct probing. Probing will typically be conducted at 100 -foot intervals; however, the probing interval may vary depending on the specific alignment of the utility. When using probing methods to designate, subconsultant will vacuum excavate test holes periodically to provide positive visual verification that the correct utility is being probed. Due to obvious inefficiencies, probing will not be attempted in paved areas. Accurate collection and recording of designated utilities is a critical component of the SUE process. Subconsultant's field manager will produce detailed sketches depicting each utility as well as relevant surface features such as roadways, buildings, manholes, fire hydrants, utility pedestals, valves, meters, etc. Each utility will be labeled with a unique ID code. For example, if two buried electric cables exist on the project, one will be labeled E1 and the other E2. Paint and pin flags will be used to designate the utilities in the field. A labeled pin flag or paint mark will be used to mark each location where a survey shot is required. Shot points will typically be placed at 100 -foot intervals on utilities running parallel to the alignment and at 50 -foot intervals on utility crossings. The locations will be numbered sequentially for each individual utility line. For example, if there are 50 shots required on buried electric line El, the points will be numbered E 1 -1 through E 1 -50. Preliminary field sketches depicting the designated utilities will be prepared for use during subsequent surveying activities. These sketches will also be used to check the survey information for completeness and accuracy. Locating Procedures Subconsultant will utilize its utility designating marks and specific information provided by FNI to lay out the test hole locations. Subconsultant will attempt to place the test holes outside of paved areas wherever possible. However, some test holes may need to be placed in paved areas that may require traffic control measures to be implemented. Subconsultant will establish routine /ordinary traffic control (cones and free standing signage, etc.) wherever required as part of the standard practice. If non - routine traffic control measures are required (barricades, flag person, changeable message board, etc.), these services will be considered extra and invoiced at cost. FNI will be notified if such circumstances arise, and FNI approval will be necessary before commencement. Subconsultant will utilize non - destructive vacuum excavation equipment to excavate the test hole at the required locations. Once the utilities are located, subconsultant will record the type, size, material, depth to top and general running direction. The test hole will be assigned a unique ID number and will be marked with rebar /cap, nail /disk, or chiseled X, as appropriate. Test - hole excavations will be backfilled with appropriate material and the original surface will be restored. The backfill will be compacted in lifts by mechanical means to minimize settlement. Deliverables Subconsultant will produce an electronic SUE file depicting the type and horizontal location of the designated utilities and test holes. FNI will provide subconsultant with base Attachment A -14 EXHIBIT 3 map /topographic files in electronic format for use in preparing the SUE file. Subconsultant will utilize its standard SUE line styles and symbology. As a QL "B" SUE deliverable, subconsultant will produce a SUE CAD file depicting the type and horizontal location of the designated utilities. The size and material type will be provided only if the information is indicated on available record drawings. Subconsultant will utilize its standard utility line styles and symbology to produce the QL "B" deliverable. The QL "A" SUE deliverable will be a Test Hole Data Summary sheet containing the field data collected at each test hole. ARTICLE III ADDITIONAL SERVICES: Additional Services to be performed by FNI, if specifically authorized in writing by Owner, which are not included in the above - described Basic Services, are described as follows: A. Making revisions to drawings, specifications or other documents when such revisions are 1) not consistent with approvals or instructions previously given by OWNER or 2) due to other causes not solely within the control of CONSULTANT. B. Making revisions to drawing, specifications, or other documents due to OWNER changes to the previously submitted and approved utility relocation alignments. C. Additional meetings other than specifically mentioned in the Basic Services and Special Services portion of this Agreement. D. Any additional re- submittals of the TxDOT reimbursement package(s) or utility permit package(s) after the initial submittal as stated in the Basic Services portion of this Agreement. If changes are requested to either submittal package to TxDOT, FNI will evaluate and notify the OWNER for the authorization to perform the additional work. E, Any Construction Phase services outside of the specific services stated in Task D in the Basic Services portion of this Agreement. If FNI is requested to perform additional Construction Phase services, authorization for Additional Services shall be approved prior to work being performed. F. Preparing data and reports for assistance to OWNER in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator other than those specified in the Special Services Land Acquisition Services section of this Agreement. G. Services associated with condemnations, in addition to those listed in Special Services. H. Services associated with relocations of property owners during the easement or ROW acquisition process. Attachment A- 15 EXHIBIT 3 Furnishing the services of a Resident Project Representative to act as OWNER's on -site representative during the Construction Phase. Bulldozer or other equipment services required to achieve access to boring locations. K. Stand -by time or time in excess of one -half hour required for travel between boring locations. L. Additional laboratory services, including quantities or items other than described in Basic Services. M. Additional engineering services, including personnel time and expenses for items not specifically described in Basic Services. This may include, but is not limited to, additional meetings requested by Client or Client's other consultants, assistance to Client in dealing with regulatory agencies, preparation and engineering assistance in legal proceedings, and evaluation of alternative designs for the project or relocation of structure, following initial submittal of the geotechnical report. N. Any other required or requested services authorized by Client, other than those specifically described in Basic Services. ARTICLE IV TIME OF COMPLETION: CONSULTANT is authorized to commence work on the Project upon execution of this AGREEMENT and agrees to complete the services in accordance with the following schedule: Submit Final plans within 270 days of Notice to Proceed pending permits and approval by TxDOT. If CONSULTANT's services are delayed through no fault of CONSULTANT, CONSULTANT shall be entitled to adjust contract schedule consistent with the number of days of delay. These delays may include but are not limited to delays in OWNER or regulatory reviews, delays on the flow of information to be provided to CONSULTANT, governmental approvals, etc. These delays may result in an adjustment to compensation. ARTICLE V RESPONSIBILITIES OF OWNER: Owner shall perform the following in a timely manner so as not to delay the services of FNI: A. Designate in writing a person to act as Owner's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define Owner's policies and decisions with respect to FNI's services for the Project. B. Provide all criteria and full information as to Owner's requirements for the Project, including project objectives and constraints, space, capacity and performance requirements, and any budgetary limitations; and furnish copies of all design and construction standards which Owner will require to be included in the plans and Contract Documents. Attachment A -16 EXHIBIT 3 C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports, GIS mapping and data, and any other data relative to completion of the Project. D. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of other consultants as Owner deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. E. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. F. Give notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services, or any defect or nonconformance of the work of any contractor. G. Contact other departments within the City of Denton and coordinate with them to obtain record drawings of other utilities, buildings, or infrastructure as needed. H. Furnish, or direct FNI to provide, Additional Services as stipulated in Exhibit A, Article III of this AGREEMENT or other services as required. I. Bear all costs incident to compliance with the requirements of this Article IV. ARTICLE V DESIGNATED REPRESENTATIVES: FNI and Owner designate the following representatives: Owner's Designated Representative — Frank Payne, P.E. 901 -A Texas Street Denton, Texas 76209 Phone: 940 - 349 -8946 Fax: 940 - 349 -8951 Email: Frank.Payne @cityofdenton.com FNI's Project Manager - A. Scott Maughn, P.E. 2711 Haskell Avenue, Suite 3300 Dallas, Texas 75204 Phone: 214 -217 -2260 Fax: 214 -217 -2201 Email: asm y freese.com FNI's Accounting Representative - Matt Shafer 4055 International Plaza, Suite 200 Fort Worth, Texas 76109 Phone: 214 -217 -2238 Fax: 817-735-7492 Email: mcs ,freese.com Attachment A -17 EXHIBIT 3 Compensation Compensation to FNI for the Basic Services described in Attachment A shall be the lump sum of One Hundred Ninety Two Thousand Three Hundred Ten Dollars ($192,310). Compensation to FNI for Special Services in Attachment A shall be computed on the basis of the Schedule of Charges, but shall not exceed Eight Hundred Eighty Two Thousand Nine Hundred Fifty Dollars ($882,950). If FNI sees the Scope of Services changing so that Additional Services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will notify CITY for CITY's approval before proceeding. Additional Services shall be computed based on the Schedule of Charges. Schedule of Charges: Position Min Max Professional - 1 70 119 Professional - 2 91 152 Professional - 3 97 186 Professional - 4 142 227 Professional - 5 180 250 Professional - 6 171 455 Construction Manager - 1 88 203 Construction Manager - 2 107 155 Construction Manager - 3 132 166 Construction Manager - 4 167 226 CAD Technician /Designer - 1 58 102 CAD Technician /Designer - 2 93 133 CAD Technician /Designer - 3 119 171 Corporate Project Support - 1 43 99 Corporate Project Support - 2 72 178 Corporate Project Support - 3 78 345 Intern/ Coop 36 66 Rates for In -House Services Technology Charge Bulk Printinq and Reproduction $8.50 per hour Black and White $0.10 per copy Color $0.25 per copy Travel Plot - Bond $2.50 per plot Standard IRS Rates Plot - Color $5.75 per plot Plot - Other $5.00 per plot Binding $0.25 per binding OTHER DIRECT EXPENSES: Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from the FNI office and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. For Resident Representative services performed by non -FNI employees and CAD services performed In -house by non -FNI employees where FNI provides workspace and equipment to perform such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. These ranges and rates will be adjusted annually in February. 350.22015 Co -I EXHIBIT 3 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality ofthe Projector in the construction oc riD UMcntsconsistinio*fDwm,,5',' 4 'il j,j, 0, Ji 1IT O?CUILIUULMIE� �CLI.1116 11111IMFE Ill tUWLJ UVE lic tPI)CLI, ordinances, codes and regulations "901MOrkh Ma EXHIBIT 3 2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process Although the Owner will consider the advice of the Design Professional, the award ofthe construction contract is in the sole discretion of the Owner 2.6.1 The Design Pr6fessional's responsibility to provide Basic'Services for the Construction Phase under'this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 83 2 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below For design professionalss the administration shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council of Goverranents, current as of the date of the Agreement, unless otherwise provided in the Agreement 2.6.3 Construction Phase duties, responsibilities and limitations ofauthority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument 2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents Design Professional shall provide Owner a written report Subsequent to each on-site visit On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors, The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner The Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in noway alter the Design Professional's obligations or the Owner's rights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work The Design Professional shall not be responsible for the Contractor's schedules Or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omissions The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional Communications by and with the Design Professional's consultants shall be through the Design Professional 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractors Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional 's obser- vations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents The foregoing representations are subject to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Design Professional The issuance of Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified However, the issuance of Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed, However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work KM EXHIBIT required by the Contract Documents The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component, When professional certification of wformance characteristics of materials s or e uAriment is reguired by the Contract Documents, Ile j4i4jii4lessional shall be entitled to The Design Professional shall prepare Change Orders and Construction Change Directives, with Supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3 1 1 and 3 3 3, for the Ownces approval and execution in accordance vvith the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which mano,inconsistent with the intent or the Contract Documents 2.6.14 un behalf vr the Owner, the Design Professional shall conduct inspections to determine the dates or Substantial Completion und Final Completion, and u requested h' the Owner shall issue Certificates n[ Substantial and Final Completion The Design Professional will receive and review written guarantees and related documents required ov the Contract for Construction mbu assembled hy the Contractor and shall issue ufinal certificate for Payment upon compliance with the requirements ^f the Contract Documents 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements o the Contract Documents mo°hncn request ur either the Owner or Contractor The Design Professional's response m such requests shall be made with reasonable promptness and within anytime limits agreed upon 2.6.16 Interpretations and decisions ur the Design Professional shall oeconsistent with the intent vr and reasonably inferable from the Contract Documents and shall ucin"viunoo,in the form ufdrawings. When making such interpretations and initial decisions, the Design Professional shall endeavor wsecure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith ioaccordance with all the provisions or this Agreement and in the absence vfnegligence z.a./r The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents 2.6.18 The Design Professional (|)shall render services under the Agreement in accordance with the Degree orcnre�(z) will reimburse the Owner for all damages caused »r the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not u, released from any rights the Owner may have under the Agreement o, diminish any o the Design Professional's obligations thereunder 2o.19 Ile Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes m the Construction Documents during the Construction Phase KM MUNIT-i" an EXHIBIT 3 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause ofaction in favor ofa third party against either the Owner or Design Professional 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confidential or proprietary The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, Subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants 11.7 All notices, Communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein All notices shall be deemed effective upon receipt by the party to whom Such notice is given, or within three (3) days after mailing 11.8 Ifany provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement GC-8 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1157, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the construction of the Mayhill Road Utility Improvements for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5911- awarded to Canary Construction, Inc. in the amount of $114,442). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION This project will extend approximately 1,126 feet of sanitary sewer line west from an existing manhole on site, and approximately 530 feet of water line east from Mayhill Road. The proposed work will be performed on the north side of the City of Denton's Eco Waste to Energy Recycling Composting Solar (ECO- W.E.R.C.S.) facility which is located at 651 Mayhill Road. This will provide water and waste water services to existing and future operations within the area. Requests for Proposals were sent to 658 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Three (3) proposals meeting specifications were received. The proposals were evaluated based upon published criteria including price, construction schedule, compliance with specifications, and indicators of probable performance. A Best and Final Offer was requested from all vendors but none was received. Canary Construction, Inc. was ranked the highest and determined to be the best value for the City of Denton (Exhibit 1). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 9, 2015, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve the award of a contract with Canary Construction, Inc. in the amount of $114,442. PRINCIPAL PLACE OF BUSINESS City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1157, Version: 1 Canary Construction, Inc. Coppell, TX ESTIMATED SCHEDULE OF PROJECT The project is estimated to be completed within 60 working days of Notice to Proceed. FISCAL INFORMATION These services will be funded from Solid Waste Capital Fund account 660877595.1360.30100. Requisition 4126620 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Evaluation/Ranking Sheet Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 2 of 2 Printed on 11/12/2015 Ga x 0 ci 0 Ln r 2 0 to -4 0 c -0 3 0 it m > (6 " Ln in C 0 C = CL 0 " 0 0 V) CL C Ln 0 0 0. 0 Q > o 0 .ci 'o 0 1 O Z -0 C .2 z z N L 4, b E 2 O. LE E S S -a -a :2 L E 't 0- t 2 .0 J m t m.0 m m —0 Y Ln ID o o ti w o o cn L Ln 0. LL CD ew VF c.5 0 O O 00 E 0 O 0 C? o o ct o 2 E m E E CD ew VF c.5 0 O O 00 E 0 O 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 EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 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, November 9, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Ex Officio Members: Howard Martin, ACM Utilities Absent: Chair Randy Robinson and George Campbell, City Manager OPEN MEETING CONSENT AGENDA B. PUB15 -050 Consider a recommendation for the City of Denton to enter into a contract with Canary Construction Incorporated, Coppell, Texas, in the amount of $114,442 for the installation of approximately 1,126 feet of 8" sanitary sewer line and 530 feet of 2" water line. (RFP 5911). Board Member Russell pulled this item to ask about the trench safety which seems to be at $2.00 on the bid tab sheet, what would the liability be for the City. Kemler answered if the company owns the equipment and does not have to rent, it would be inexpensive. Howard Martin answered the liability would be the same, it does not relieve them of the responsibility. Board Member Russell motioned to approve this item with a second from Board Member Parker. Vote 6 -0 Adjournment 12:11 p.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE MAYHILL ROAD UTILITY IMPROVEMENTS FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5911- AWARDED TO CANARY CONSTRUCTION, INC. IN THE AMOUNT OF $114,442). WHEREAS, the City has solicited, received and tabulated competitive proposals for the construction of public works or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described proposal is the highest scored proposal for the construction of the public works or improvements described in the Request for Proposal (RFP) document and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive proposal for the construction of public works or improvements, as described in the "Request for Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the RFP number assigned hereto, are hereby accepted and approved: RFP NUMBER CONTRACTOR AMOUNT 5911 Canary Construction, Inc. $114,442 SECTION 2. The acceptance and approval of the above competitive proposals shall not constitute a contract between the City and the person submitting the proposal for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Proposers including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the proposals accepted and approved herein, provided that such contracts are made in accordance with the Notice to Proposers and Request for Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. 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 RFP 5911 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive proposals and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved proposals and authorized contracts executed pursuant thereto. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 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 -1158, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of four (4) side load and two (2) front load refuse truck bodies for the City of Solid Waste Department, which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5978- awarded to DaDee Manufacturing, LLC in the amount of $794,156.92). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION This item is for the purchase of two (2) DaDee Model Scorpion compressed natural gas automated side load bodies, two (2) DaDee Model Scorpion diesel automated side load bodies, and two (1) DaDee Model Mantis diesel automated front load bodies which will be purchased through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program contract number RH08 -14. Comparison pricing was obtained from the manufacturer using both a cooperative contract and a direct quote from the manufacturer. The H -GAC pricing provided the lowest price and best value (Exhibit 1). Five (5) bodies are replacements approved in the Fiscal Year 2015 -2016 budget. The bodies are replacements for units that are currently on 2009 and 2010 chassis that have met the Fleet Department's replacement criteria based on age, maintenance cost, and mileage. One (1) body is an addition approved in the Fiscal Year 2015 -2016 budget. The 2009 and 2010 chassis will be sold at auction once the replacements are in service. In order to improve efficiencies and minimize costs, the City of Denton is standardizing to DaDee Manufacturing, LLC for automated side load and front load bodies (Exhibit 2). DaDee Manufacturing, LLC does not have distributors and sells directly to customers. Scorpion automated side loaders, Mantis automated front loaders, and all replacement parts are designed, manufactured, and sold exclusively by DaDee Manufacturing, LLC (Exhibit 3). 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 sole source. RECOMMENDATION Award the purchase of six (6) refuse bodies to DaDee Manufacturing, LLC in the amount of $794,156.92. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1158, Version: 1 PRINCIPAL PLACE OF BUSINESS DaDee Manufacturing, LLC Phoenix, Arizona ESTIMATED SCHEDULE OF PROJECT The purchase and delivery of the chassis with refuse will occur within 180 days of purchase order issuance. FISCAL INFORMATION The refuse bodies will be funded from the Solid Waste Department Capital Fund accounts listed below: Body Type Fuel Type Account# Amount Auto Side Load CNG 660160595.1355.30100 $163,042.82 Auto Side Load CNG 660163595.1355.30100 $163,042.82 Auto Side Load Diesel 660161595.1355.30100 $113,892.82 Auto Side Load Diesel 660162595.1355.30100 $113,892.82 Front Load Diesel 660152595.1355.30100 $120,142.82 Front Load Diesel 660153595.1355.30100 $120,142.82 Requisition 4126625 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Comparison and Quotes Exhibit 2: Standardization Memo Exhibit 3: Sole Distributor Letter Exhibit 4: Public Utilities Board Draft Minutes Exhibit 5: 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 11/12/2015 MHM IWI ISM • • • • • • O N 0 z E 0 LL CZ 00 00 CD CD 00 00 `^° io CD k6 k6 C6 C� rn 0 ,I- ;I- I- ;I- C) 0 4-J m 4d).- C14 in- r1i 4d).- 00 in- d' 00 C� Ln U E 4m- -0 0 u pj rY loll E E 4 _0 E u w ro 0 0 1- 4-J 4 4-J ro CD 0 ro E U C� CD 4-J > 0 4-J r1i 00 cr 0- -0 0 0 0 W (n x rn 0) 0 CD O Fn ry a- CD 00 kc, kR Ln co Ln 00 Ln co �o Ln ,6 u U C: CD Ln p ro co 1.0 r1i CD ;I- r*l r1i m ro r1i iA- r1i 4d).- r*l iA- u E -0 0 u dl J, u < ro _0 (U E (U co (D u ro ro 0 D T C) @) Of n 0) ro 7- 3: Q) 0 CD ro E ra u 0 n cr _0 0 CD Lli x rn 0 °o 1 10 1 ry a- 00 m 0 0 0 0 4E� 0 V z .(V < LU 0 0 u (UP 0 z I I E 0 LL CZ MEMORANDUM DATE: October 29, 2015 TO: Elton Brock FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente UB JSFcr., DaDee N4LIIIL11IICftIdJI The City began purchasing automated side load refuse bodies from DaDee Manufacturing in 2012. These were specified due to claims of lower maintenance cost, ease of service and reduced downtime due to failures. The Scorpion branded automated side load refuse bodies have proven themselves in City of Denton service and DaDee Manufacturing continues to innovate with a newly designed "Mantis" front load refuse body. I respectfully request authorization to purchase "Scorpion" brand automated side load and "Mantis" brand front load refuse bodies produced by DaDee Manufacturing for any future refuse body replacements or additions whenever an available model meets our specifications. I believe this to be the best value for the City based on fleet standardization. Fleet standardization minimizes costs and improves efficiencies relating to technician training, diagnostic software, specialty tools and equipment and stocking of replacement parts. We are currently set up as an approved warranty provider for the Scorpion refuse bodies through DaDee Manufacturing. As a warranty provider, downtime and transportation costs associated with warranty repairs are reduced as they are performed in our shop. Regards, ,F Terry Kader Fleet Services Superintendent EXHIBIT 3 1930 W Broadway Road Phoenix, AZ 85041 October 26, 2015 Charlie Rosendahl Fuel Specialist City of Denton 804 Texas Street Denton, Texas 76209 Re: SCORPION ASL Dear Mr. Rosendahl: This letter is to confirm that the SCORPION Automated Side Loader and all replacement parts and service are sole source products designed, manufactured, and sold exclusively by DaDee Manufacturing, LLC. Additionally we are confirming that the MANTIS Automated Front Loader and all replacement parts and service are sole source products designed, manufactured, and sold exclusively by DaDee Manufacturing, LLC. This product, parts and service are sole proprietary and must be purchased by institutions from DaDee Manufacturing at the address above or from our authorized dealer in the state of Texas. That dealer is BTE Truck Body. If you desire additional information don't hesitate to contact me at 602-276-4390. With Regards, Paul Campbell, President Cc: D.Crafton, DaDee Mfg J. Ray, BTE Truck Body Phone: 800-940-7467 FAX: 602-276-5470 www.DaDeeMfg.com 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 EXHIBIT 4 DRAFT MINUTES PUBLIC UTILITIES BOARD November 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, November 9, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chair Randy Robinson and George Campbell, City Manager Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA H. PUB15 -062 Consider the recommendation of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the acquisition six (6) refuse bodies for Solid Waste Department; and providing and effective date (File 5978- Purchase of six (6) refuse bodies from DaDee Manufacturing for $794,156.92). Board Member Jackson motioned to approve item H with a second from Board Member Russell. Vote 6 -0 Adjournment 12:11 p.m. EXHIBIT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF FOUR (4) SIDE LOAD AND TWO (2) FRONT LOAD REFUSE TRUCK BODIES FOR THE CITY OF DENTON SOLID WASTE DEPARTMENT, WHICH ARE AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5978 - AWARDED TO DADEE MANUFACTURING, LLC IN THE AMOUNT OF $794,156.92). 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, are hereby approved: FILE NUMBER VENDOR AMOUNT 5978 DaDee Manufacturing, LLC $794,156.92 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 5978 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: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1160, Version: 1 DEPARTMENT: CM/ ACM: Date: Agenda Information Sheet Transportation John Cabrales, Jr. November 17, 2015 SUBJECT Consider approval of a resolution of the City of Denton, Texas affirming its support of the Texas Department of Transportation's planned widening of FM -426, (McKinney Street) at the earliest opportunity; and providing an effective date. The Mobility Committee recommends approval (3 -0). BACKGROUND In June 2015, the Regional Transportation Council (RTC) approved the implementation of a Project Milestone Policy. The intent of the policy is to expedite project implementation by reviewing projects that were funded 10 or more years ago and have not been advanced to the construction phase. The policy will remove low - priority projects from the Transportation Improvement (TIP) /Statewide Transportation Improvement Program (STIP) development process as part of the 2017 -2020 development cycle thereby providing additional funding capacity for higher - priority projects that are ready to proceed to implementation. Farm to Market Road (FM) 426, McKinney Street, has been placed on the RTC Milestone Project List. FM 426 is currently a TxDOT project designed to widen the current two lane facility to a four lane divided urban highway from approximately Woodrow Lane to Grissom Road just east of Billy Ryan High School. The City is currently waiting for TxDOT's response to our request to expand the project scope, extending the project east to Trinity Road and to facilitate the project in two phases. The City suggested that Phase I, Loop 288 to Trinity Road, be initiated first to address pedestrian safety, improve peak hour traffic constraints and tie -into proposed near -term enhancements to Mayhill. RTC staff is requesting that the City of Denton submit a response demonstrating the City's support of FM 426 in the form of policy board action (see Exhibit 1). Exhibit 2 is a resolution affirming support of widening of FM 426. RTC staff has reviewed this resolution and has indicated the language satisfies their request. RECOMMENDATION Mobility Committee recommends approval of the resolution affirming FM 426 as a valid mobility project by a vote of 3 -0. ESTIMATED SCHEDULE OF PROJECT TxDOT currently shows FM 426 with an estimated LET date in April 2016, and completion in spring 2019. Staff believes additional time will be needed to address revised design and facilitate the environmental process. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1160, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 30, 2015, City Council Meeting, staff received direction to work with TxDOT to advance FM 426 and seek feasibility of completing the project in two phases; Phase I Loop 288 east to Trinity Road, and Phase 11 Loop 288 west to Woodrow. November 10, 2015, Mobility Committee voted 3 -0 recommending proposed resolution affirming FM 426 as a priority project in Denton. FISCAL INFORMATION TxDOT currently demonstrates project funding at $18.9 million EXHIBITS 1. RTC Letter dated September 9, 2015 2. Resolution Respectfully submitted: Mark Nelson Transportation Director City of Denton Page 2 of 2 Printed on 11/12/2015 EXHIBIT 1 uuuuuuiu1111111111110 Regio nawll 'IC'aairuwr.Ipaaiftfloiru r;amuo.uincill nl'wr, Trarozwmllpoii taalon Umua k;y IBody for Uwe, IINovth Celrntri ll Ubxaws u""Uo uu°ua,H of Gawwae lrulrrielrwl;a )MoUo °ralprulll'rUan FaUaruNng 0Irganizadoii a for Hilo IDdIIIas orlb IRog'bri) TO: County Judges, City Mayors DATE: September 9, 2015 County Administrators, City Managers Transportation Agency Officials FROM: Michael Morris, P.E. Director of Transportation SUBJECT: Implementation of the 10 -Year Project Milestone Policy In June 2015, the Regional Transportation Council (RTC) approved the implementation of a Project Milestone Policy, which is intended to review projects that were funded 10 or more years ago in which construction has not started. Projects will either be cancelled if they are no longer priority projects, or they can be reapproved if sufficient documentation is provided that demonstrates your agency's support of the project (both financially and in terms of timely project delivery). The anticipated outcomes of the Project Milestone Policy include increasing the amount of available funds for priority projects, providing a realistic assessment of project status for funding decision - making, and balancing project construction schedules within the current financial constraints appropriately. Enclosed is a list of projects that are implemented by your agency and /or located within your jurisdiction, but implemented by another agency. The projects will need to be reapproved using the process noted below or they will be cancelled by the RTC through the 2017 -2020 Transportation Improvement Program (TIP) Development effort. If another agency is implementing projects in your jurisdiction, please coordinate with the relevant agency to ensure that they respond appropriately. In order to maintain funding on a project, please provide a response that affirms your agency's interest in the noted projects. Responses must include: 1) a realistic and achievable project schedule that has North Central Texas Council of Governments and Texas Department of Transportation staff concurrence, 2) documentation of local match availability, and 3) documentation reconfirming policy board support (i.e., city council or commissioners' court resolution). If projects are advancing imminently and received policy board approval within the last six months, new action is not needed. In that case, just provide the last policy board approval document(s) for that item. If existing documentation of agency support is greater than six months old, new policy board approval is required. If your agency wishes to cancel the project, please indicate that decision in the response as well. Please provide a formal response to Christie Gotti, Senior Program Manager at NCTCOG, PO Box 5858, Arlington, Texas 76005 -5888, by Monday, November 30, 2015, to avoid cancellation of projects through the 2017 -2020 TIP development effort. If you have questions regarding this effort, please contact Christie Gotti or Adam Beckom at 817/608 -2349. IT Micheol Morris, P.E. AB:Ip Enclosure cc: Regional Transportation Council Members Surface Transportation Technical Committee Members lI a . r��a �s� � � ��gtwn, texs 7600w,5888 - (817 695 9240 -II. (8 17) 640 .302 \w w U W a N0 0d G. Z w w O w a Z O Q H a C0 Z 0 N 0 N ti r O N 0 Q w O r Z w Q w w 0 0 w V w J w U) N U w O�/ w a LL O HIBIT 1 w O O U CL F m Z w >" x U a- W Q J (ry U z_W F CO wi w w w n 0 m a. 0 Z w E w 0 w CL 2 Z O LIB 0 CL V) Z CD 04 ti CD 04 0 0 CO) w Z w w w 0 cl w L) w -j w 0) U) F- C-) w 0 w a. 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Z F- I.- w w 0� 0 w Z < < 0 0 0 w z 0 LL U- LL LL 2 w W 0 �L FL FL FL T: -i < 0 0 O 0 0 F- 1 0 F- 0 0 a. 0 1 0 r) 0 w 0 af 0 00 >1 x x 0 0 X ---- — I --l—t P 3: � F- 0 0 -1 F- Z z w M: 1: -i 0 0 0 0 CD w of 0 0 0 0 Lu < Cl) < cm M LO 00 0 co 00 0) LO LO C4 W) 00 a) N 00 CL z Z 0 -j a 0 -j LU < < F- F- Z U) U) U) < Z (0 < 0 0 U) F- g Q� w w F- - of F- - (r W w w w 0 z w w 0 z w LL z z z 0 w 0Z 0 Lij 0 z I- Df (L W F- OE < C, < 0 0 0 z F- < Z F- < W I.- < C, LL 0 0 iL z CL 2 CL :2 _j CD a- _j U) 0� EL - W m CD (0 _j CO (02 0 aid=s _j I- _j F- n F- -i 0 p og 89 <W a 9 F- W m a F- "0 < 0 < 0 LL c) W W o L) W C/) U) L) C� (D -,) C11 (9 z z 0 U) 0 C4 0 60 0 < o 0)0 C) 2 D 5 z< ZZ) 0 w iy Oaf 0) of C) w 0 (if 0 w 0 w 0 a- - CL cli CL < D- 0 F- 0 F- C) F- C) U IL IL LL 0 D Z Li a 0 Z LU >: FZ z ui >- z Z ca w 21 CL W _j 0- _j LLI M z LU 0 = U) F- S: \Legal \Our Documents \Resolutions\15 \Project Milestone Resolution RES (3).doc RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS AFFIRMING ITS SUPPORT OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S PLANNED WIDENING OF FM- 426 (MCKINNEY STREET) AT THE EARLIEST OPPORTUNITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the North Central Texas Council of Governments has listed the FM 426 Project (TIP Code 11217) as a Milestone project requiring local jurisdictions to reconfirm their support of the project; and WHEREAS, the Texas Department of Transportation (TxDOT) has defined the scope of the project as widening from two lanes to four lanes from 1.4 miles west of Loop 288 to 1.1 miles east of Loop 288; and WHEREAS, the City of Denton has requested TxDOT to expand the project scope to include sidewalks to facilitate safe and efficient multi -modal access to activity centers in the subject corridor; and WHEREAS, the City of Denton believes the proposed enhancement project will improve the safety of those engaged in alternative transportation and mobility for North Texas motorists, WHEREAS, the City of Denton and TxDOT Dallas District Offices are currently discussing the process to take FM 426 off the TxDOT System and once these discussions are completed, the City of Denton will submit the proposed project schedule to the North Central Texas Council of Governments. NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings set forth in the preamble of this Resolution are incorporated by reference into the body of this Resolution as if fully set forth herein. SECTION 2. The City of Denton City Council confirms FM 426 is a priority project within its jurisdiction and reaffirms its support of implementation of the enhancement project at the earliest opportunity and commits to assist TxDOT in that effort. 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 -1161, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of one (1) rear load refuse truck body for the City of Solid Waste Department, 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 5979- awarded to McNeilus Truck and Manufacturing Co. in the amount of $78,148). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION This item is for the purchase of one (1) McNeilus compressed natural gas rear loader body which will be purchased through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program Contract Number RH08 -14. Comparison pricing was obtained from the manufacturer using both a cooperative contract and a direct quote from the manufacturer. The H -GAC pricing provided the lowest price and best value (Exhibit 1). The body was approved in the Fiscal Year 2015 -16 budget and will be mounted on a new chassis that is a replacement for a 2005 chassis that has met the replacement criteria based on age, maintenance cost, and mileage. The 2005 chassis will be sold at auction once the replacement is in service. In order to maximize efficiencies and minimize costs, the City of Denton is standardizing to McNeilus models for rear loader bodies (Exhibit 2). McNeilus Truck and Manufacturing Co. does not have distributors and sells direct to customers (Exhibit 3). Therefore, this equipment is not available from local vendors and is a sole source acquisition. 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 sole source. RECOMMENDATION Award the purchase of one (1) McNeilus rear loader body to McNeilus Truck and Manufacturing Co. in the amount of $78,148. PRINCIPAL PLACE OF BUSINESS McNeilus Truck and Manufacturing Co Villa Rica, GA City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1161, Version: 1 ESTIMATED SCHEDULE OF PROJECT The purchase and delivery the chassis with rear load body will occur within 180 days of purchase order issuance. FISCAL INFORMATION The refuse body (FleetID #SW 1671) will be funded from Solid Waste Capital Fund account 660159595.1355.30100. Requisition 4126603 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Comparison and Quotes Exhibit 2: Standardization Memo Exhibit 3: Sole Distributor Letter Exhibit 4: Public Utilities Board Draft Minutes Exhibit 5: 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 11/12/2015 ISM ME • • • • Lfi 0 N 0 z E 0 LL C> C> CD CD - C) CD C) 00 Lti m Lri m 4 Lri CD m L' 4-J i r--q Lr� r-I C> 0 1 4d).- CD r-I iA- C) (Y) 4-9- 6 u 4-J E 0 t y 150 0 E :3 u V) C: 0 u E ro .:3 un (U :3 C: 0 4 L- 4-J -0 u ro E u U 0 0 0 CD Ul E O 4-J > 0 4-J d u 0- -0 0 0 0 Ln ui m Ln u 0) CD 0 Fn ry o° CD C� C) CD C) 00 00 00 .1 i o6 u: CD C6 r*l 00 r*l CL C6 4d).- iA- n 4-9- 6 V E 0 t y 0 V u 0 < U 00 un _0 ( D T- CD -r C: u Z E Of 0) ro n -�e u 0 00 4-J Ul E 0 U cr >- _0 0 ui Ln CD 0 ry O Ul) LU 0 0 U, (UP 0 z E 0 LL EXHIBIT 1 CONTRACT PRICING WORKSHEET For Standard Equipment Purchases Contract = 13 -3691 No.: Date = 916/2015 Prepared: This Worksheet is prepared by Contractor and given to End User. If a PO is issued, both the PO and the Worksheet MUST be faxed to H -GAC @ 713 - 993 -4548. Therefore please type or print legibly. Buying _City of Denton Texas Agency: Contractor: _McNeilus Trick & Mfg. Co. Contact ;Charles Rosendahl Person: = Prepared _Hunter W. Moore By: Phone: _(940) 300 -1454 Phone: _(214) 564 -8079 Fax: Fax: Email: _ charles .rosendahl@cityofdenton.com Email: _hmoore@mcneilusco.com Product _ BD03 Code: Description: :McNeilus Heavy Duty Rear Loader, 25 yard. ' Product Item Base Unit Price Per Contractor's H -GAC Contract: $49,964 B. Published Options - Itemize below - Attach additional sheet if necessary - Include Option Code in description if applicable (Note: Published Options are options which were submitted and priced in Contractor's bid.) Description _ Cost Description _ Cost Cart Tipper MTM SSPIII 10826 1 Year Body Warranty 0 Fold Up w/ Shut Down - Access Door = 1100 5 Year Hyd Cylinder Warranty = 3284 Power Distribution Module on Frame (SS) = 455 Fire Extinguisher CS Scabbard = 550 Hopper Liner = 1613 Both Side Linkage (CT SSPIII) = 332 Rear to Cab Buzzer 332 Shut Off Ball Valve (Yellow) _ 219 Safety Triangle Kit 74 Subtotal From Additional Sheet(s): Subtotal B: = 18785 C. Unpublished Options - Itemize below - Attach additional sheet if necessary (Note: Unpublished options are items which were not submitted and priced in Contractor's bid.) Description _ Cost Description _ Cost 24H x 28W x 18D Steel toolbox _ 587 3rd Eye 2 Port w/ Reverse _ 4694 Camera Assist Lights _ 514 Monitor Center Overhead _ 155 (2) Hopper Lights _ 156 Move Ejector Controls and Resevoir to FOB _ 207 Smart Lights QTY 4 TG 4" 859 Subtotal From Additional Sheet(s): Subtotal C :_ 7172 Check: Total cost of Unpublished Options (C) cannot exceed 25% of the total of the Base Unit_ Price plus Published Options (A +B). For this transaction the percentage is: 10% D Total Cost before any other applicable Charges, Trade -Ins, Allowances, Discounts, Etc. (A +B +C) Quantity Ordered: l 1 1 X Subtotal of A + B + C: 75921 = Subtotal D: 75921 E. Trade-Ins / Special Discounts / Other Allowances / Freight / Installation / Miscellaneous Charges Description Cost Description Cost Freight 2227 Subtotal E: 2227 Delivery Date:; F. Total Purchase Price (D +E): 78148 EXHIBIT 1 Model 2511: HD 25 yd Rear Loader Quote Number: OQ1201509140753 Rev: 0 To: City of Denton 901 -B Texas St Denton, TX 76209_USA Attn: Charles Rosendahl Delivery Point: City of Denton 901 -B Texas St Denton, TX 76209 USA Standard Equipment: Commerical Intertech Pump and Valves D.O.T. Reflective Tape Tailgate Safety Prop Options Included in Price: \ \19076 OEM install 69DGE SS &CS CNG System FOB TG /Ejector FOB resevoir CN 17873 & 19032 Access Door Ladder, Fold -Up with Shut Down Assist Lights, Backup Camera Ball Valve Shutoff (yellow handle) on Tank Broom Holder, Tailgate, Curbside Cart Tipper Model: McNeilus SSPIII (2) CNG /LNG Handling Provision Decals: (3) Slow Down to Get Around Fire Extinguisher in Cab, 5 lb. Fire Extinguisher, 20 lb., Curbside, Scabbard Mount Five Year Cylinder Warranty Hopper Liner, 3/16 inch AR200 Hopper Work Lights: 2 Hydraulic Tank Inside Body Manual Linkage, Curbside and Streetside Monitor Mount Center Overhead Mudflaps, Front: Black w /McNeilus Logo Power Distribution Module, Chassis Frame, Streetside Rear -to -Cab Buzzer, Curbside Safety Triangle Kit in Cab Shovel Holder, Tailgate, Curbside Smart Lights, (4), 4" on Tailgate Third Eye, 7" Color 2 port, 2 Cameras, W/A Toolbox, 24Hx28Wx18D Steel Printed: 9/16/2015 Unit Price: $ 99,368 Federal Excise Tax: $ - Freight: $ 2,227 Total Unit Price: $ 101,595 Quantity: 1 Extended Price: $ 101,595 Rosenboom Cylinders Body Access Door Smart Pak 3 cubic yard hopper Aeroquip Hoses L.E.D. Lights Quantity Discount Pricing includes all applicable discounts for quantity quoted. Change of quantity ordered may result in revision of price. Freight Charges Freight charge is estimated based upon fuel cost at the time of quotation. The charge is subject to change at the time of delivery. Shipping arrangements (when applicable) are made for the convenience of the customer. Seller assumes no responsibility for the equipment in transport. Specifications All specifications are subject to change without notice. Several factors beyond the control of the chassis OEM or McNeilus may result in the substitution of components of equal or greater quality. Special Options Special options are subject to Engineering application approval. Taxes No state or local taxes are included in the prices quoted herein. Any applicable state and local taxes must be added to these prices and paid directly by the purchaser. Terms & Conditions This quotation assumes and is subject to the standard terms and conditions of London Machinery, McNeilus Truck and Manufacturing Co. and Oshkosh Corporation, including limitations of warranty. Payment Terms Due upon receipt. Chassis: CT - Peterbilt 567 CNG (Provided By Customer) This quotation is valid until 09130/2015. Any order is contingent upon acceptance by McNeilus Companies, Inc. By signing and returning this document, you are indicating that you have read and approved the above specification. Date(s) chassis will arrive at McNeilus Authorized Signature Date EXHIBIT 2 MEMORANDUM DATE: October 29, 2015 TO: Elton Brock FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente LJBJ1, rr ,: Mc:,Neikis aini actip -ing The City has purchased rear load refuse bodies from McNeilus Manufacturing for many years due to competitive pricing, reliability, and a local product support group. McNeilus rear load refuse bodies have proven themselves in City of Denton service. I respectfully request authorization to purchase McNeilus rear load refuse bodies for any future refuse body replacements or additions whenever an available model meets our specifications. I believe this to be the best value currently for the City based on past experience and fleet standardization. Fleet standardization minimizes costs and improves efficiencies relating to technician training, diagnostic software, specialty tools and equipment and stocking of replacement parts for rear load refuse bodies. 1 cls, I ert'y Kader, Fleet Services Superintendent EXHIBIT 3 159cluenum, MCNEILUS TRUCK AND MANUFACTURING CO. 1101 Interstate H Way 45 S. Post Office Box 458 Hutchins, TX 75141 972-225-2313 October 29, 2015 Charles Rosendahl City of Denton 901 -B Texas St Denton, TX 76209 RE: Two CNG Powered McNeilus Rear Loader Refuse Vehicles Dear Mr. Rosendahl: Per your request, this correspondence will serve as confirmation that the quotes provided to you for the above referenced Refuse equipment originated directly from McNeilus Truck and Manufacturing Company. McNeilus Truck and Manufacturing Company is a direct distributor of its equipment, and the Company does not rely upon a dealer network and/or any subcontracted third parties to assist in the sale of product to end users. Further, only McNeilus Truck and Manufacturing Company has the ability to produce the Refuse equipment that was referenced in the aforementioned quote. Should you need any additional information in order to assist the City of Denton in its' consideration of McNeilus Refuse equipment, please do not hesitate to contact me via phone or email. Sincerely, Hunter�M"oore Regional Sales Manager 214-846-6739 Cell / ljrno re(p_rncneilusco.corn ............................ 2 ............. .. Visit us at our website: www.mcneiluscompanies.com 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 EXHIBIT 4 DRAFT MINUTES PUBLIC UTILITIES BOARD November 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, November 9, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chair Randy Robinson and George Campbell, City Manager Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA E. PUB15 -053 Consider the recommendation of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Houston - Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the acquisition one (1) rear loader refuse body for Solid Waste Department; and providing and effective date (File 5979- Purchase of one (1) refuse body from McNeilus Manufacturing for $78,148). Board Member Jackson motioned to approve item E with a second from Board Member Russell. Vote 6 -0 Adjournment 12:11 p.m. EXHIBIT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF ONE (1) REAR LOAD REFUSE TRUCK BODY FOR THE CITY OF DENTON SOLID WASTE DEPARTMENT, 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 5979- AWARDED TO MCNEILUS TRUCK AND MANUFACTURING CO. IN THE AMOUNT OF $78,148). 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, are hereby approved: FILE NUMBER VENDOR AMOUNT 5979 McNeilus Truck and Manufacturing Co. $78,148 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 5979 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: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1163, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for purchase and installation of trees for the City of Denton parks, medians, right -of -ways, public buildings, and other City departments, as needed; providing for the expenditure of funds therefore; and providing an effective date (RFP 5933- awarded to Fannin Tree Farm Sales, LLC in the (3) year not -to- exceed amount of $450,000). RFP INFORMATION This RFP is for the purchase of trees including tree planting and replacement to help beautify our City, provide for cleaner air, and impact the overall tree canopy. The tree planting and installation services will be used primarily by the Parks Department but can be used by any City department. Tree planting has broad appeal to both the commercial and residential sectors. Tree planting and installation services, will provide the following benefits to the City of Denton: • Provide a guaranteed price and availability to purchase trees and installation services for the Parks and Recreation Department (PARD) planting; • Provide a contracted source for tree purchases and installation services for other City departments; • Provides a contractor warranty period for any new plantings; • Meets the City Council's directive for reforestation through the use of the Tree Mitigation fund. Request for Proposals were sent to 12 prospective suppliers, including local suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download, and advertised in the local newspaper. Two (2) responsive proposals were received. The proposals were evaluated based upon published criteria including price, project schedule, compliance with specifications, and indicators of probable performance. Fannin Tree Farm, LLC was ranked the highest and determined to be the best value for the City (Exhibit 1). A Best and Final Offer (BAFO) was solicited which resulted in a three (3) year savings of $20,962.30. Fannin Tree Farm, LLC is a well - established business and has provided quality work for the City of Denton on previous occasions. They have provided a consistent, stable work force with Certified Arborists on staff to supervise the crews. This contractor has also provided continuity in their services delivery without any complaints from the citizens of Denton. Staff has been very pleased with the timeliness of the work and City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1163, Version: 1 attention to detail. RECOMMENDATION Staff recommends the award of RFP 5933 to Fannin Tree Farm, LLC in the three (3) year not -to- exceed amount of $450,000. PRINCIPAL PLACE OF BUSINESS Fannin Tree Farm, LLC Frisco, TX ESTIMATED SCHEDULE OF PROJECT This contract will begin immediately upon approval. The optimal time to plant trees is in the fall through spring. This is an initial one (1) year contract that automatically renews for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION Funding for this service will be charged to the Tree Mitigation Fund, account# 224101.7899 and General Fund Park operations. Purchase orders will be issued on an as needed basis. EXHIBITS Exhibit 1: Evaluation and Ranking Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Emerson Vorel at 349 -7460. City of Denton Page 2 of 2 Printed on 11/12/2015 EXHIBIT 1 RFP 5933 - Pricing Sheet for ANNUAL TREE SUPPLY FOR THE CITY OF DENTON Respondent's Business Name: Principal Place of Business (City & State) Fannin Tree Farm Sales, LLC Frisco, TX Fannin Tree Farm Sales, LLC Frisco, TX Tree Source, Inc. Prosper, TX Item # EST.. ANN QTY uoM Product Description Description 2 Unit Price Extended Price Unit Price Extended Price BAFO PRICING Unit Price Extended Price SECTION A- Purchase Only -2" 1 10 EA 2" Quercus shumardii Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 170.00 $ 1,700.00 2 10 EA 2" Quercus virginiana Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 170.00 $ 1,700.00 3 10 EA 2" Quercus macrocarpa Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 170.00 $ 1,700.00 4 10 EA 2" Quercus muehlenbergii Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 125.00 $ 1,250.00 5 10 EA 2" Ulmas crassifolia Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 170.00 $ 1,700.00 6 1 10 EA 2" Pistacia chinensis Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 170.00 $ 1,700.00 7 10 EA 2" Cercis canadenis Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 125.00 $ 1,250.00 8 10 EA 6' -8' Chilopsis linearis'Bubba' Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 125.00 $ 1,250.00 9 10 EA 6' -8' Lagerstroemia indica- Container Grown $ 125.00 $ 1,250.00 $ 120.00 $ 1,200.00 $ 125.00 $ 1,250.00 'Muskogee','Natchez, Tuscarora' $ - $ - SECTION B- PURCHASE AND PLANT -CITY PROVIDES SUPPLIES -3" 10 30 EA 3" Quercus shumardii Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 365.00 $ 10,950.00 11 30 EA 3" Quercus virginiana Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 335.00 $ 10,050.00 12 30 EA 3" Quercus macrocarpa Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 335.00 $ 10,050.00 13 30 EA 3" Quercus muehlenbergii Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 290.00 $ 8,700.00 14 30 EA 3" Ulmas crassifolia Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 335.00 $ 10,050.00 15 30 EA 3" Pistacia chinensis Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 365.00 $ 10,950.00 16 30 EA 3" Cercis canadenis Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 290.00 $ 8,700.00 17 30 EA 3" Platanus occidentalis -male only Container Grown or B &B $ 365.00 $ 10,950.00 $ 360.00 $ 10,800.00 $ 365.00 $ 10,950.00 18 30 EA 3" Populus deltoids -male only Container Grown or B &B $ 365.00 $ 10,950.00 $ 360.00 $ 10,800.00 $ 365.00 $ 10,950.00 19 30 EA 3" Carya illinoinensis Container Grown or B &B $ 365.00 $ 10,950.00 $ 360.00 $ 10,800.00 $ 365.00 $ 10,950.00 20 30 EA 3" Pinus eldarica Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 290.00 $ 8,700.00 21 30 EA 6' -8' Chilopsis linearis'Bubba' Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 290.00 $ 8,700.00 22 1 30 EA 6' -8' Lagerstroemia indica- Container Grown or B &B $ 290.00 $ 8,700.00 $ 285.00 $ 8,550.00 $ 290.00 $ 8,700.00 'Muskogee','Natchez, Tuscarora' $ - SECTION C- PURCHASE AND PLANT - VENDOR PROVIDES SUPPLIES -3" 23 30 EA 3" Quercus shumardii Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 415.00 $ 12,450.00 24 30 EA 3" Quercus virginiana Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 385.00 $ 11,550.00 25 30 EA 3" Quercus macrocarpa Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 385.00 $ 11,550.00 26 30 EA 3" Quercus muehlenbergii Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 335.00 $ 10,050.00 27 30 EA 3" Ulmas crassifolia Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 385.00 $ 11,550.00 28 30 EA 3" Pistacia chinensis Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 415.00 $ 12,450.00 29 30 EA 3" Cercis canadenis Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 335.00 $ 10,050.00 30 30 EA 3" Platanus occidentalis -male only Container Grown or B &B $ 410.00 $ 12,300.00 $ 405.00 $ 12,150.00 $ 410.00 $ 12,300.00 31 30 EA 3" Populus deltoids -male only Container Grown or B &B $ 410.00 $ 12,300.00 $ 405.00 $ 12,150.00 $ 410.00 $ 12,300.00 32 30 EA 3" Carya illinoinensis Container Grown or B &B $ 410.00 $ 12,300.00 $ 405.00 $ 12,150.00 $ 410.00 $ 12,300.00 33 30 EA 3" Pinus eldarica Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 335.00 $ 10,050.00 34 1 30 EA 6' -8' Chilopsis linearis'Bubba' Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 335.00 $ 10,050.00 35 30 EA 6' -8' Lagerstroemia indica- Container Grown or B &B $ 335.00 $ 10,050.00 $ 330.00 $ 9,900.00 $ 335.00 $ 10,050.00 'Muskogee','Natchez, Tuscarora' $ - $ - SECTION D- PURCHASE AND PLANT -CITY PROVIDES SUPPLIES -4" 36 10 EA 4" Quercus shumardii Container Grown or B &B $ 415.00 $ 4,150.00 $ 390.00 $ 3,900.00 $ 535.00 $ 5,350.00 37 10 EA 4" Quercus virginiana Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 460.00 $ 4,600.00 38 10 EA 4" Quercus macrocarpa Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 460.00 $ 4,600.00 39 10 EA 4" Quercus muehlenbergii Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 395.00 $ 3,950.00 40 10 EA 4" Ulmas crassifolia Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 460.00 $ 4,600.00 41 1 10 EA 4" Pistacia chinensis Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 535.00 $ 5,350.00 42 10 EA 4" Cercis canadenis Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 395.00 $ 3,950.00 43 10 EA 4" Platanus occidentalis -male only Container Grown or B &B $ 495.00 $ 4,950.00 $ 490.00 $ 4,900.00 $ 495.00 $ 4,950.00 44 10 EA 4" Populus deltoids -male only Container Grown or B &B $ 495.00 $ 4,950.00 $ 490.00 $ 4,900.00 $ 495.00 $ 4,950.00 45 10 EA 4" Carya illinoinensis Container Grown or B &B $ 495.00 $ 4,950.00 $ 490.00 $ 4,900.00 $ 495.00 $ 4,950.00 46 10 EA 4" Pinus eldarica Container Grown or B &B $ 395.00 $ 3,950.00 $ 390.00 $ 3,900.00 $ 395.00 $ 3,950.00 47 1 10 EA 6' -8' Chilopsis linearis'Bubba' Container Grown or B &B $ 290.00 $ 2,900.00 $ 285.00 $ 2,850.00 $ 290.00 $ 2,900.00 48 10 EA 6' -8' Lagerstroemia indica- Container Grown or B &B $ 290.00 $ 2,900.00 $ 285.00 $ 2,850.00 $ 290.00 $ 2,900.00 'Muskogee','Natchez, Tuscarora' $ - $ - $ - SECTION E- PURCHASE AND PLANT - VENDOR PROVIDES SUPPLIES -4" $ 49 1 10 1 EA 4" Quercus shumardii Container Grown or B &B $ 470.00 $ 4,700.00 $ 445.00 $ 4,450.00 $ 615.00 $ 6,150.00 50 1 10 1 EA 4" Quercus virginiana Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 540.00 $ 5,400.00 Exhibit 1 EXHIBIT 1 RFP 5933 - Pricing Sheet for ANNUAL TREE SUPPLY FOR THE CITY OF DENTON Respondent's Business Name: Principal Place of Business (City & State) Fannin Tree Farm Sales, LLC Frisco, TX Fannin Tree Farm Sales, LLC Frisco, TX Tree Source, Inc. Prosper, TX Item # EST.. ANN QTY uoM Product Description Description 2 Unit Price Extended Price Unit Price Extended Price Unit Price Extended Price 51 10 EA 4" Quercus macrocarpa Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 540.00 $ 5,400.00 52 10 EA 4" Quercus muehlenbergii Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 450.00 $ 4,500.00 53 10 EA 4" ulmas crassifolia Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 540.00 $ 5,400.00 54 10 EA 4" Pistacia chinensis Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 615.00 $ 6,150.00 55 10 EA 4" Cercis canadenis Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 450.00 $ 4,500.00 56 10 EA 4" Platanus occidentalis -male only Container Grown or B &B $ 550.00 $ 5,500.00 $ 545.00 $ 5,450.00 $ 550.00 $ 5,500.00 57 10 EA 4" Populus deltoids -male only Container Grown or B &B $ 550.00 $ 5,500.00 $ 545.00 $ 5,450.00 $ 550.00 $ 5,500.00 58 10 EA 4" Carya illinoinensis Container Grown or B &B $ 550.00 $ 5,500.00 $ 545.00 $ 5,450.00 $ 550.00 $ 5,500.00 59 10 EA 4" Pinus eldarica Container Grown or B &B $ 450.00 $ 4,500.00 $ 445.00 $ 4,450.00 $ 450.00 $ 4,500.00 60 10 EA V -8' Chilopsis linearis'Bubba' Container Grown or B &B $ 335.00 $ 3,350.00 $ 330.00 $ 3,300.00 $ 335.00 $ 3,350.00 61 10 EA V -8' Lagerstroemia indica- Container Grown or B &B $ 335.00 $ 3,350.00 $ 330.00 $ 3,300.00 $ 335.00 $ 3,350.00 'Muskogee', 'Natchez', Tuscarora' $ - $ - Exhibit 1 EXHIBIT 1 RFP 5933 - Pricing Sheet for ANNUAL TREE SUPPLY FOR THE CITY OF DENTON Respondent's Business Name: Principal Place of Business (City & State) Fannin Tree Farm Sales, LLC Frisco, TX Fannin Tree Farm Sales, LLC Frisco, TX Tree Source, Inc. Prosper, TX Item # EST.. ANN QTY uoM Product Description Description 2 Unit Price Extended Price Unit Price Extended Price Unit Price Extended Price SECTION F - PURCHASE AND PLANT -CITY PROVIDES SUPPLIES -5" 62 2 EA 5" Quercus shumardii Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 970.00 $ 1,940.00 63 2 EA 5" Quercus virginiana Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 870.00 $ 1,740.00 64 2 EA 5" Quercus macrocarpa Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 870.00 $ 1,740.00 65 2 EA 5" Quercus muehlenbergii Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 825.00 $ 1,650.00 66 2 EA 5" Ulmas crassifolia Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 870.00 $ 1,740.00 67 1 2 EA 5" Pistacia chinensis Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 970.00 $ 1,940.00 68 2 EA 5" Cercis canadenis Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 825.00 $ 1,650.00 69 2 EA 5" Platanus occidentalis -male only Container Grown or B &B $ 925.00 $ 1,850.00 $ 900.00 $ 1,800.00 $ 925.00 $ 1,850.00 70 2 EA 5" Populus deltoids -male only Container Grown or B &B $ 925.00 $ 1,850.00 $ 900.00 $ 1,800.00 $ 925.00 $ 1,850.00 71 2 EA 5" Carya illinoinensis Container Grown or B &B $ 925.00 $ 1,850.00 $ 900.00 $ 1,800.00 $ 925.00 $ 1,850.00 72 2 EA 5" Pinus eldarica Container Grown or B &B $ 825.00 $ 1,650.00 $ 815.00 $ 1,630.00 $ 825.00 $ 1,650.00 73 2 EA 8' -10' Chilopsis linearis'Bubba' Container Grown or B &B $ 425.00 $ 850.00 $ 415.00 $ 830.00 $ 425.00 $ 850.00 74 2 EA 8' -10' Lagerstroemia indica- Container Grown or B &B $ 425.00 $ 850.00 $ 415.00 $ 830.00 $ 425.00 $ 850.00 'Muskogee','Natchez, Tuscarora' $ - $ - SECTION G- PURCHASE AND PLANT - VENDOR PROVIDES SUPPLIES -5" 75 2 EA 5" Quercus shumardii Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 1,100.00 $ 2,200.00 76 2 EA 5" Quercus virginiana Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 1,000.00 $ 2,000.00 77 2 EA 5" Quercus macrocarpa Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 1,000.00 $ 2,000.00 78 2 EA 5" Quercus muehlenbergii Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 920.00 $ 1,840.00 79 2 EA 5" Ulmas crassifolia Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 1,000.00 $ 2,000.00 80 1 2 EA 5" Pistacia chinensis Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 1,100.00 $ 2,200.00 81 2 EA 5" Cercis canadenis Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 920.00 $ 1,840.00 82 2 EA 5" Platanus occidentalis -male only Container Grown or B &B $ 1,020.00 $ 2,040.00 $ 995.00 $ 1,990.00 $ 1,020.00 $ 2,040.00 83 2 EA 5" Populus deltoids -male only Container Grown or B &B $ 1,020.00 $ 2,040.00 $ 995.00 $ 1,990.00 $ 1,020.00 $ 2,040.00 84 2 EA 5" Carya illinoinensis Container Grown or B &B $ 1,020.00 $ 2,040.00 $ 995.00 $ 1,990.00 $ 1,020.00 $ 2,040.00 85 2 EA 5" Pinus eldarica Container Grown or B &B $ 920.00 $ 1,840.00 $ 910.00 $ 1,820.00 $ 920.00 $ 1,840.00 86 2 EA 8' -10' Chilopsis linearis'Bubba' Container Grown or B &B $ 500.00 $ 1,000.00 $ 490.00 $ 980.00 $ 500.00 $ 1,000.00 87 2 EA 8' -10' Lagerstroemia indica- Container Grown or B &B $ 500.00 $ 1,000.00 $ 490.00 $ 980.00 $ 500.00 $ 1,000.00 'Muskogee','Natchez, Tuscarora' $ - $ - SECTION H- PURCHASE AND PLANT -CITY PROVIDES SUPPLIES -6" 88 1 EA 6" Quercus shumardii Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,275.00 $ 1,275.00 89 1 EA 6" Quercus virginiana Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,125.00 $ 1,125.00 90 1 EA 6" Quercus macrocarpa Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,125.00 $ 1,125.00 91 1 EA 6" Quercus muehlenbergii Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,050.00 $ 1,050.00 92 1 EA 6" Ulmas crassifolia Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,125.00 $ 1,125.00 93 1 1 EA 6" Pistacia chinensis Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,275.00 $ 1,275.00 94 1 EA 6" Cercis canadenis Container Grown or B &B $ 1,050.00 $ 1,050.00 $ 1,040.00 $ 1,040.00 $ 1,050.00 $ 1,050.00 95 1 EA 6" Platanus occidentalis-male only Container G rown or B&B $ 1,150.00 $ 1,150.00 $ 1,125.00 $ 1,125.00 $ 1,150.00 $ 1,150.00 96 1 EA 6" Populus deltoids-male only Container Grown or B&B $ 1,150.00 $ 1,150.00 $ 1,125.00 $ 1,125.00 $ 1,150.00 $ 1,150.00 97 1 EA 6" Carya illinoinensis Container Grown or B&B $ 1,150.00 $ 1,150.00 $ 1,125.00 $ 1,125.00 $ 1,150.00 $ 1,150.00 98 1 EA 6" Pinus eldarica Container Grown or B&B $ 1,150.00 $ 1,150.00 $ 1,125.00 $ 1,125.00 $ 1,150.00 $ 1,150.00 99 1 EA psis linearis'Bubba' Cont ainer Grown or B &B $ 425.00 $ 425.00 $ 415.00 $ 415.00 $ 425.00 $ 425.00 Erstroemia indica- Wo� Container Grown or e &B $ 425.00 $ 425.00 $ 415.00 $ 415.00 $ 425.00 $ 425.00 ee','Natchez, Tuscarora' 1 $ - $ - $ - Exhibit 1 EXHIBIT 1 RFP 5933 - Pricing Sheet for ANNUAL TREE SUPPLY FOR THE CITY OF DENTON Respondent's Business Name: Principal Place of Business (City & State) Fannin Tree Farm Sales, LLC Frisco, TX Fannin Tree Farm Sales, LLC Frisco, TX Tree Source, Inc. Prosper, TX Item # EST.. ANN QTY uoM Product Description Description 2 Unit Price Extended Price Unit Price Extended Price Unit Price Extended Price SECTION H- PURCHASE AND PLANT - VENDOR PROVIDES SUPPLIES -6" 116 $ - EA Price for Replacement of Dead Tree and Installation 3" $415.00 117 101 1 EA 6" Quercus shumardii Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,405.00 $ 1,405.00 102 1 EA 6" Quercus virginiana Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,255.00 $ 1,255.00 103 1 EA 6" Quercus macrocarpa Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,255.00 $ 1,255.00 104 1 EA 6" Quercus muehlenbergii Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,175.00 $ 1,175.00 105 1 EA 6" Ulmas crassifolia Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,255.00 $ 1,255.00 106 1 1 EA 6 "Pistaciachinensis Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,405.00 $ 1,405.00 107 1 EA 6" Cercis canadenis Container Grown or B&B $ 1,175.00 $ 1,175.00 $ 1,165.00 $ 1,165.00 $ 1,175.00 $ 1,175.00 108 1 EA 6" Platanus occidentalis -male only Container Grown or B &B $ 1,275.00 $ 1,275.00 $ 1,250.00 $ 1,250.00 $ 1,275.00 $ 1,275.00 109 1 EA 6" Populus deltoids -male only Container Grown or B &B $ 1,275.00 $ 1,275.00 $ 1,250.00 $ 1,250.00 $ 1,275.00 $ 1,275.00 110 1 EA 6" Carya illinoinensis Container Grown or B &B $ 1,275.00 $ 1,275.00 $ 1,250.00 $ 1,250.00 $ 1,275.00 $ 1,275.00 111 1 EA 6" Pinus eldarica Container Grown or B &B $ 1,275.00 $ 1,275.00 $ 1,250.00 $ 1,250.00 $ 1,275.00 $ 1,275.00 112 1 EA psis linearis'Bubba' Cont ainer Grown or B &B $ 500.00 $ 500.00 $ 490.00 $ 490.00 $ 500.00 Erstroemia W,.� indica- Container Grown or a &B $ 500.00 $ 500.00 $ 490.00 $ 490.00 $ 500.00 $ 500.00 ee','Natchez, Tuscarora' $ - $ - Total $ 450,765.00 $ 443,635.00 $ 484,640.00 Item # QTY I UOM Product Description 10 Price of 114 1 EA Discounted Percentage off of Published Price 35.00% 115 1 EA Price for Replacement of Dead Tree (City will Install) 3" $125.00 116 1 EA Price for Replacement of Dead Tree and Installation 3" $415.00 117 1 EA Price for Replacement of Dead Tree (City will Install) 6" $375.00 118 1 EA Price for Replacement of Dead Tree and Installation 6" $1,425.00 Payment Terms invoice II'saiid in 15 days; EVALUATION: 50 Price 40 Compliance to Specification 10 Performance project schedule /Indicators 100 TOTAL EVALUATED SCORE Items in RED received no offer. Highest cost from corresponding suppliers was entered for evaluation purposes only. Discount % Discount 2.00% 1 $ 434,762.30 0.00% $ 484,640.00 50 44.85 40 39 10 10 100 93.85 Fannin Tree Farm Sales, LLC Tree Source, Inc. Frisco, TX Prosper, TX EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR PURCHASE AND INSTALLATION OF TREES FOR THE CITY OF DENTON PARKS, MEDIANS, RIGHT -OF -WAYS, PUBLIC BUILDINGS, AND OTHER CITY DEPARTMENTS, AS NEEDED; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5933- AWARDED TO FANNIN TREE FARM SALES, LLC IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $450,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of utility bill printing and mailing services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5933 Fannin Tree Farm Sales, LLC $450,000 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. EXHIBIT 2 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 RFP 5933 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 BY: DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AN FANNIN TREE FARM SALES, LLC (RFP 5933) THIS CONTRACT is made and entered into this date , by and between Fannin Tree Farm Sales, LLC a corporation, whose address is 15700 State Highway 121, Frisco, TX 75035, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and /or services in accordance with the City's document RFP 5933 — Annual Tree Supply for the City of Denton, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal 45933 (Exhibit `B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSigned by: ��P BY: CS21996C2A2B439... RFP# 5933 FANNIN TREE FARM SALES, LLC DocuSigned by: i�avxn ff FAA &(Vkl BY: OC9465FFC5D24AA... AUTHORIZED SIGNATURE 10/28/2015 Date: Fannn Tree Farm Sales, LLC Name: Title: Owner /Manager 972 - 747 -9233 PHONE NUMBER brian @fannintreefarm.com EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $450,000. Pricing shall be per Exhibit E attached. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. The escalation/de- escalation will be based upon manufacturer published pricing sheets to the vendor. The price will be increased or decreased based upon the annually percentage change in the manufacturer's price list. The price adjustment will be determined annually from the award date. Should the change exceed or decrease a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment annually in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation /de- escalation clause. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 Fxhihit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights -of -way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof, and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - IOd) provides a preference for domestic end products for supplies acquired for use in the United States. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on- site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFPBid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 Exhibit D INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at anytime; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. Any deductibles or self- insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. RFP# 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 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 RFP4 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. RFN 5933 DocuSign Envelope ID: 84F5ECOB- EFEA -45C6- 8562- OAD72E889C5D EXHIBIT 3 E Exhibit 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. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the vendor 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 vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a -1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. Name of vendor who has a business relationship with local governmental entity. n/a 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 1 Name of local government officer about whom the information in this section is being disclosed. n/a Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor 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 vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes F—x—] No C. Is the tiler of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. n/a 4 X I have no Conflict of Interest to disclose. 5 FKM�t cuSigned by: rAIu't- a 10/28/2015 �1g.WWWMMMdoing business with the governmental entity Date EXHIBIT 3 Certificate Of Completion Envelope Number: 84F5E COB EFEA45C6B5620AD72E889C5D Status: Sent Subject: Please DocuSign: 5933 - Contract for Annual Tree Supply for City of Denton - Fannin Tree Farm.pdf Source Envelope: Document Pages: 30 Signatures: 5 Envelope Originator: Certificate Pages: 6 Initials: 0 Jody Word AutoNav: Enabled jody.word @cityofdenton.com Envelopeld Stamping: Enabled IPAddress: 129.120.6.150 Record Tracking Status: Original Holder: Jody Word 10/28/2015 6:52:31 AM PT jody.word @cityofdenton.com Signer Events Signature Jody Word Completed jody.word @cityofdenton.com Buyer City of Denton Using IP Address: 129.120.6.150 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 9/24/2015 9:09:15 AM PT ID:be2d1602- d71a -4f31- 8755- e63c33db91b6 Barrett Fannin Sig dby: brian @fannintreefarm.com 9 Ell Owner /Mana er OC9465FFC5D24AA . Fannn Tree Farm Sales, LLC Using IPAddress: 69.15.67.122 Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 10/20/2015 5:35:00 AM PT ID: f4740d80- aabl- 4f8c- 86le- 21be9d284f68 John Knight Ell ocuSigned by: john.knight @cityofdenton.com Deputy City Attorney C821996C2A2e439... City of Denton Using IPAddress: 129.120.6.150 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 C Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) Location: DocuSign Timestamp Sent: 10/28/2015 7:10:38 AM PT Viewed: 10/28/2015 7:10:57 AM PT Signed: 10/28/2015 7:11:31 AM PT Sent: 10/28/2015 7:11:33 AM PT Viewed: 10/28/2015 8:43:26 AM PT Signed: 10/28/2015 8:44:20 AM PT Sent: 10/28/2015 8:44:24 AM PT Viewed: 10/28/2015 8:47:53 AM PT Signed: 10/28/2015 8:48:07 AM PT Sent: 10/28/2015 8:48:10 AM PT Viewed: 10/28/2015 8:52:30 AM PT ' StCUfttb Signer Events Electronic Record and Signature Disclosure Not Offered ID: Jennifer K Walters jennifer .walters @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: In Person Signer Events Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events Charleta Gilbreath charleta .gilbreath @cityofdenton.com 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: Accepted: 10/9/2015 11:39:51 AM PT ID: 04463961- 03db -4c4d- 9228- d660d6146ed6 Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Teresa Abrams Teresa.Abrams @cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 3 Signature Signature Status Status Status Status Status P"IEL Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 10/28/2015 8:44:23 AM PT Viewed: 10/28/2015 8:56:18 AM PT Sent: 10/28/2015 8:44:23 AM PT EXHIBIT 3 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered ID: Marshall McGee Marshall.McGee @cityofdenton.com Security Level: Email, Account Authentication (Optional) 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: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 10/28/2015 8:48:10 AM PT Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Jody Word, Barrett Fannin, Robin Fox EXHIBIT 3 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. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1169, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17. 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a 2nd Amendment to a contract with Ultimate CNG, LLC. for the purchase of temporary mobile compressed natural gas (CNG); providing for the expenditure of funds therefor; and providing an effective date (File 5464- providing for an additional expenditure amount of $1,300,000 with the total contract amount not -to- exceed 1,895,000). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION This 2nd Amendment to the CNG Service Agreement will allow the Solid Waste and Recycling Services Department to continue utilizing Ultimate CNG, LLC to provide temporary natural gas fueling services for their Compressed Natural Gas (CNG) collection trucks and light duty vehicles which are currently owned by the Department. A permanent CNG fueling facility is planned for installation in the next 24 months. On April 15, 2014, City Council approved a temporary fueling services agreement with Ultimate CNG, LLC in the not -to- exceed amount of $120,000. A change order in the amount of $25,000 was issued by the Materials Management Department on December 12, 2014 to allow for additional fuel to be purchased on a short term basis. A First Amendment in the amount of $450,000 was approved by Council on December 16, 2014 to meet the increasing demand for fuel as additional CNG refuse trucks are added to the Solid Waste fleet. Currently there are eleven (11) CNG collection trucks in Residential Collections and seven (7) in Commercial Collections. There are also two (2) light duty CNG pickups. There are eight (8) additional CNG vehicles budgeted to be received in Fiscal Year 2015 -16, and four (4) budgeted for the Fiscal Year 2016 -2017. Staff recommends approving a two (2) year estimated dollar amount of $1,300,000 for additional temporary fueling services, to allow adequate time for the construction of a permanent CNG fueling station. As the Solid Waste Department increases its fleet of CNG trucks and transitions away from diesel engines, the cost of purchasing the actual fuel should decrease significantly. Compressed natural gas fuel is also a cleaner, more environmentally friendly alternative to diesel fuel. Following the completion of Denton's CNG fueling station the utilization of Ultimate CNG mobile fueling services will be discontinued. Ultimate CNG, LLC is experienced in the mobile compressed natural gas fueling industry and provides mobile fueling of compressed natural gas refuse and recycling trucks in Texas and other states. Staff is not aware of any other CNG fueling services that provide the mobile services offered by Ultimate CNG, LLC. The Solid City of Denton Page 1 of 3 Printed on 11/12/2015 File #: ID 15 -1169, Version: 1 Waste Department has received excellent and responsive service from Ultimate CNG, LLC. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 9, 2015, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve the Second Amendment to a contract with Ultimate CNG, LLC. for the purchase of temporary mobile compressed natural gas (CNG) in the amount of $1,300,000 for a total contract amount not -to- exceed $1,895,000). PRINCIPAL PLACE OF BUSINESS Ultimate CNG, LLC Oakton, VA ESTIMATED SCHEDULE OF PROJECT Twice weekly fuel delivered will be made to the City of Denton Landfill until such time that the City determines that the services are no longer necessary. FISCAL INFORMATION Payment for these services will be funded from the following Solid Waste Operating Fund fueling account numbers: 660100.7842 (Residential Collection) 660200.7842 (Commercial Collection) 660600.7842 (Disposal and Processing Operations) EXHIBITS Exhibit l: Staff Memo Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Second Amendment Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 2 of 3 Printed on 11/12/2015 File M ID 15 -1169, Version: 1 City of Denton Page 3 of 3 Printed on 11/12/2015 h rvvm d by I cx:ls i''I Exhibit 1 MEMORANDUM Date: November 5, 2015 To: Elton Brock, Purchasing Agent From: Vance Kemler, General Manager -Solid Waste & Recycling Services Subject: Temporary Compressed Natural Gas (CNG) Fueling Services — FY2015 -2016 The development of a permanent natural gas fueling station to provide CNG fuel for the City of Denton Solid Waste Fund and other city departments that will have CNG fueled fleet vehicles will not be completed until 2017. The Solid Waste and Recycling Services operation has fourteen CNG refuse and recycling collection trucks and one light duty CNG truck. Six additional CNG fueled collection trucks are scheduled to be delivered prior to the new natural gas fueling station begins operation. City Staff has searched for temporary mobile CNG fueling services in the region to provide fueling of our refuse and recycling collection trucks until the permanent natural gas fueling station begins operation. There are several companies in the region that provide mobile fueling for liquid fuels (diesel, gasoline, propane, LNG). There is only one service provider, Ultimate CNG, in the region that provides mobile CNG fueling. The use of a temporary mobile CNG fueling service is a more economical solution for providing CNG on a short -term basis than purchasing our own mobile fueling equipment. The Solid Waste and Recycling Services staff recommends the use of Ultimate CNG as our temporary service provider for CNG fueling of our CNG fueled vehicles until the permanent natural gas fueling station is opened. Vance Kemler General Manager -Solid Waste & Recycling Services 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 EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 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, November 9, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chair Randy Robinson and George Campbell, City Manager Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA D. PUB15 -052 Consider recommending adoption of an ordinance of the City of Denton, Texas authorizing the approval of a second Amendment to a fueling service contract with Ultimate CNG, LLC for the purchase of temporary mobile compressed natural gas (CNG); providing for the expenditure of funds for up to two years in the amount of $1,300,000, with a total contract amount not to exceed $1,895,000; and providing an effective date. (File 5464) Board Member Jackson motioned to approve item D with a second from Board Member Russell. Vote 6 -0 Adjournment 12:11 p.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE APPROVAL OF A SECOND AMENDMENT TO AN AGREEMENT WITH ULTIMATE CNG, LLC. FOR THE PURCHASE OF TEMPORARY MOBILE COMPRESSED NATURAL GAS (CNG); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5464- PROVIDING FOR AN ADDITIONAL EXPENDITURE AMOUNT OF $1,300,000; WITH THE TOTAL CONTRACT AMOUNT NOT -TO- EXCEED $1,895,000). WHEREAS, on April 15, 2014 by Ordinance No. 2014 -097, the City awarded an agreement entitled "Agreement for CNG Fuel Service" for the City's purchase of temporary mobile compressed natural gas to Ultimate CNG, LLC in the not -to- exceed amount of $120,000; said Agreement was for the purpose of providing necessary CNG gas fuel for the City's CNG gas - powered trucks and vehicles previously purchased by City for the use and operations of its Solid Waste Department; and WHEREAS, thereafter a Change Order was issued by the Materials Management Department in the amount of $25,000; and WHEREAS, on January 6, 2015 by Ordinance No. 2015 -002, the City awarded an agreement entitled "First Amendment to Contract with CNG, LLC.," in the not -to- exceed amount of $450,000, in an aggregate amount of not -to- exceed $595,000; and WHEREAS, thereafter it became necessary for the City to again enter into an agreement with CNG, LLC, for a multi -year agreement, for fiscal years 2016 and 2017; staff has proposed an amount of an additional $1,300,000 for said second amended agreement; said further agreement is entitled "Second Amendment to Contract with CNG, LLC," hereafter the "Second Amendment." WHEREAS, this procurement is necessary to preserve or protect the public health or safety of the City's residents under the provisions of Section 252.022(a)(2) Texas Local Government Code; and WHEREAS, the Staff having recommended, and the City Manager having recommended to the Council this Second Amendment be authorized to amend such previous contracts with respect to increasing the contract amount to a total not -to- exceed $1,895,000; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble of this ordinance are hereby incorporated by reference as a part of this ordinance. SECTION 2. The Second Amendment increasing the amount of the contract between the City and Ultimate CNG, LLC, which is on file in the office of the Purchasing Agent, in an amount not -to- exceed an additional $1,300,000, is hereby approved and the expenditure of funds therefor is hereby authorized in accordance with said Second Amendment. The total contract amount increases to $1,895,000. EXHIBIT 3 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, Texas under File No. 5464 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 By: DocuSign Envelope ID: 2A11 FB06- 9CC0 -41 F3- BBFD- EF564FC5EEA4 EXHIBIT 4 THE STATE OF TEXAS § COUNTY OF DENTON § SECOND AMENDMENT TO CONTRACT 45464 THIS SECOND AMENDMENT TO CONTRACT (hereafter the "Second Amendment ") to that certain Contract awarded by the City of Denton, and awarded to Ultimate CNG, LLC (hereafter the "Agreement ") in the original not -to- exceed amount of $120,000 which was heretofore executed on April 15, 2014, and a change order in the amount of $25,000 which was approved on December 12, 2014, and a First Amendment in the amount of $450,000 which was approved on January 6, 2015, all approved within the delegated authority of the City of Denton City Council; and said Agreement was heretofore entered into by and between the City of Denton, Texas, a Texas Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter the "CITY "); and the Ultimate CNG, LLC (hereafter "ULTIMATE CNG ") with its offices at 3185 Wheatland Farms Drive, Oakton, Virginia 22124; and WHEREAS, the Agreement referenced above, provided for ULTIMATE CNG to provide temporary CNG fueling services up to four (4) times per week of compressed natural gas (CNG) into the City of Denton, CNG- fueled vehicles at the fueling site, using commercially reasonable efforts. ULTIMATE CNG has substantially delivered the initial services as called for in the original Agreement; and the CITY deems it necessary to further expand the services by ULTIMATE CNG to the CITY, and to provide an additional not -to- exceed amount of $1,300,000, for an aggregate of $1,895,000, for the additional required services, in order to continue to fuel its fleet of CNG- fueled Solid Waste Department vehicles. NOW THEREFORE, the CITY and ULTIMATE CNG (hereafter collectively referred to as the "Parties "), in consideration of their mutual promises and covenants, as well as for other good and valuable considerations, do hereby AGREE to the following: It is agreed that ULTIMATE CNG shall provide continued, but increased service delivery U to five (5) times per week of compressed natural gas (CNG) into the City of Denton, CNG fueled vehicles at the fueling site, using commercially reasonable efforts. It is further agreed that all previously agreed to pricing, fuel cost, transport fees, and fueling fees, shall remain exactly the same as within the original Agreement referenced above. The Parties hereto agree, that except as specifically provided for by this Second Amendment, that all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations of the Parties, set forth in both the Agreement and now the Second Amendment shall be, and will remain in full force and effect. 1 DocuSign Envelope ID: 2A11 FB06- 9CC0 -41 F3- BBFD- EF564FC5EEA4 EXHIBIT 4 IN WITNESS WHEREOF, the City of Denton, ULTIMATE CNG, LLC, have each executed this Second Amendment electronically, by and through their respective duly authorized representatives and officers on this date: "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation En George Campbell, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY L-02 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY L-02 DocuSigned by: �o(A,In �n o S21996 CC2A2B439... "ULTIMATE CNG" ULTIMATE CNG, LLC, A limited liability company DocuSigned by: B•7 nRf]FFft54C7nD447 Dennis Pick Chief Executive Officer 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1170, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: November 17, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Concrete Crushing Services for the City of Denton Solid Waste Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5910- awarded to Big City Crushed Concrete in the three (3) year not -to- exceed amount of $300,000). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION The City of Denton Landfill staff diverts approximately 12,000 tons of clean concrete from the waste stream to a stockpile area on an annual basis. When the unprocessed concrete stockpile area becomes sizeable, it is crushed into material that can be used by the landfill and other City departments. The concrete can be processed into two different sizes -a 13/4" and smaller flex base material that is used internally for road base on landfill roads, and larger materials that are used for construction projects throughout the facility. These finished products allow the landfill to reduce costs associated with purchasing aggregate materials from outside vendors. It is anticipated that 25,000- 36,000 tons will be processed within the three (3) year contract period. Payments to Big City Crushed Concrete will be based on the processed material scale weight. Requests for Proposals were sent to 112 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. This is the second solicitation issued for this service, as the first received no offers. Only one proposal was received in response to this solicitation. The proposal submitted by the City's current provider of this service, Big City Crushed Concrete, was evaluated based upon published criteria including price, delivery timeframe, compliance with specifications, and indicators of probable performance. Big City Crushed Concrete has been providing this service for the City of Denton for five years and is determined to be the best value for the City of Denton. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 26, 2015, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1170, Version: 1 Award to Big City Crushed Concrete in the three (3) year not -to- exceed amount of $300,000. PRINCIPAL PLACE OF BUSINESS Big City Crushed Concrete Dallas, TX ESTIMATED SCHEDULE OF PROJECT This is an annual contract that automatically renews through October 26, 2018. FISCAL INFORMATION These services will be funded from Solid Waste Operating Fund account 660300.7879. Purchase orders will be issued on an as needed basis. EXHIBITS Exhibit l: Pricing and Evaluation Sheet Exhibit 2: Public Utility Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 2 of 2 Printed on 11/12/2015 EXHIBIT 1 RFP 5910 - Concrete Crushing Services Evaluation SECTION A - PROPOSAL PRICING Big City Crushed Concrete Dallas, TX SECTION B- OPTIONAL PRICING: CITY RETAINED SCRAP: Delivery onsite arrival Item # EST. ANNUAL On Site Concrete Crushing Services Product Description 10 After Notice to Tons QTY UOM Unit Price Extended Price Proceed Total: 1 1 EA Mobilization Fee $ - $ 2 EA Adder to Mobilzation Fee for quantities less than minimum noted in item 4 TURN -KEY SERVICE: On Site Concrete Crushing Services 3 12,000 Tons Contractor to retain scrap after crushing and removal from rubble. $ 7.50 1 $ 90,000.00 Mj Total Annual Cost for Turn Key Services: I $ 90,000.00 SECTION B- OPTIONAL PRICING: 4 Tons Minimum Tons Required per Mobilization 5000 Evaluation Possible Points: CITY RETAINED SCRAP: Delivery 20 Compliance with Specifications On Site Concrete Crushing Services 20 10 OPT1 12,000 Tons City to retain scrap after crushing and Price 60 100 Total: removal from rubble by contractor. $ - $ Total Annual Cost for City- retained Scrap Metal: no bid 4 Tons Minimum Tons Required per Mobilization 5000 Evaluation Possible Points: 10 Delivery 20 Compliance with Specifications 20 10 Probable Performance 10 60 Price 60 100 Total: 90 EXHIBIT 1 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 EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD October 26, 2015 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, October 26, 2015 at 9:03 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 -A Texas Street, Denton, Texas. Present: Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Chairman Randy Robinson Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA A. PUB15 -043 Consider recommendation of approval of concrete crushing services, RFP 45910 by Big City Concrete Crushing, Dallas, TX, to crush concrete material for the City of Denton, Texas for a period of (3) three years in an amount not -to- exceed $300,000. Board Member Russell pulled this item to ask about the pricing and the scrap. Kemler answered Solid Waste has been using the same contractor for three years. They give a pricing concession in exchange for the rebar. The concrete is crushed up; some is sold, some is used for temporary roads. Martin added that none of the concrete goes into the landfill. Board Member Russell motioned to approve this item with a second from Board Member Jackson. Vote 6 -0. Adjournment 9:52 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR CONCRETE CRUSHING SERVICES FOR THE CITY OF DENTON SOLID WASTE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5910— AWARDED TO BIG CITY CRUSHED CONCRETE IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $300,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for concrete crushing services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5910 Big City Crushed Concrete $300,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the EXHIBIT 3 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 RFP 5910 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 BY: DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BIG CITY CRUSHED CONCRETE (FILE 5910) THIS CONTRACT is made and entered into this date , by and between BIG CITY CRUSHED CONCRETE a corporation, whose address is 11143 GOODNIGHT LANE, DALLAS, TX 75229, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and /or services in accordance with the City's document RFP 5910- CONCRETE CRUSHING SERVICES, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Insurance Requirements (Exhibit "D "); (e) Contractor's Proposal (Exhibit "E "); (f) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSigned by: �6LW �, p BY: File 4 5910 CONTRACTOR Docu5igned by: BY: Vf IZED SIGNATURE 9/25/2015 Date: Josh Hylkema Name: Title: manager 9722435820 PHONE NUMBER josh @bccclp.com EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $300,000. Pricing shall be per Exhibit E attached. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one -year periods. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. The escalation/de- escalation will be based upon manufacturer published pricing sheets to the vendor. The price will be increased or decreased based upon the annually percentage change in the manufacturer's price list. The price adjustment will be determined annually from the award date. Should the change exceed or decrease a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment annually in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation /de- escalation clause. Cooperative Purchasing / Piuyback Option The contractor has taken exception to this item, therefore, has been removed from the RFP requirements. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 Fxhihit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights -of -way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY - PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof, and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made -for- hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made - for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made - for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - IOd) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at hqp: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFPBid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 Exhibit D INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. Any deductibles or self- insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A 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. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A 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 Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A 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. [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 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: File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 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. File 4 5910 DocuSign Envelope ID: 1DOD460B -AC8C- 4980- AC42- 9B050E10B65A EXHIBIT 4 Exhibit E Big City Crushed Concrete Dallas, TX EST. Product Description ANNUAL QTY UOM Unit Price Extended Price TURN -KEY SERVICE: On Site Concrete Crushing 12,000 Tons Services $ 7.50 $ 90,000.00 Contractor to retain scrap after crushing and removal from rubble. File 4 5910 DocuSign Envelope ID: 1DOD46OB -AC8C- 4980- AC42- 9BO50E10B65A EXHIBIT 4 Exhibit F Conflict of Interest Questionnaire (CIQ) 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. The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 71' business day after the date the originally filed questionnaire becomes incomplete or inaccurate. 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. V@ J P l➢ U 1 Y 1 U l 1 I U I U/ Y l A I U/ Y l d l l P N J P tl P t I U I U/ Y l A I G I l Y N Y I p Y I� Y n Y 4 i Y 1 tl Y l Y N Y Y N Y I 0 i Y i! i 1 i Y i! i Y 1 d 9 P Y 4 1 i i p i Y i! i 1 Y U I Ap l 1 G Y p/' i I i m Y f J Y n p I� Y p I N Y J/ U/ Y p/ Y �i p/!! 4 e "1 Y p! Y I G Y p/ U fl P G 1 d/ A I G 1 d/ Y l l P N 4 W P l➢ U 1 Y 1 U l 1 I U I U/ Y l A I U/ Y l d l l P N J P tl P t I U I U/ Y l A I G I l Y N Y I p Y I� Y n Y 4 i Y 1 tl Y l Y N Y Y N Y I 0 i Y i! i 1 i Y i! i Y 1 d 9 P Y 4 1 i i p i Y i! i 1 Y U I Ap l 1 G Y p/' i I i m Y f J Y n p I� Y p I N Y J/ U/ Y p/ Y �i p/!! 4 e "1 Y p! Y I G Y p/ U fl P G 1 d/ A I G 1 d/ Y l l P N 4 W P l➢ U 1 Y 1 U l 1 I U I U/ Y l A I U/ Y l d l l P N J P tl P t I U I U/ Y l A I G I l Y N Y I p Y I� Y n Y 4 i Y 1 tl Y l Y N Y Y N Y I 0 i Y i! i 1 i Y i! i Y 1 d 9 P Y 4 1 i i p i Y i! i 1 Y U I Ap l 1 G Y p/' i I i m Y f J Y n p I� Y p 1 Y f ti ❑ Check this box if you are filing an update to a previously filed questionnaire. 0 I do not have a conflict of interest to disclose. Please sign and date below. ❑ I have a conflict of interest to disclose, and submit the following additional information: A. Name of person filing who has a business relationship with local government entity: B. Name of local government officer with whom filer has an employment of business relationship: C. This section, 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. 1. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? 0 Yes 0 No 2. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes 0 No 3. 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 4. Describe each affiliation or business relationship. ED- Signature ocu5igned by: of person doing business with the government entity 9/25/2015 Date EXHIBIT 4 Certificate Of Completion Envelope Number: 1 D0D460BAC8C4980AC429B050E10B65A Subject: Please DocuSign: 5910 Concrete Crushing Contract Documents for City of Denton Source Envelope: Document Pages: 32 Signatures: 5 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Record Tracking Status: Original 9/24/2015 3:16:15 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: Josh Hylkema josh @bccclp.com manager Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 9/25/2015 5:15:53 AM PT ID: 416cb971- d1f7- 4e32- a09b- 52751e062ef5 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 DocuSigned by: 621037MF10A42E... Using IP Address: 166.173.59.136 Signed using mobile EllocuSigned by: C821996C2A2B439... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Rebecca Hunter rebecca.hunter @cityofdenton.com I P Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 9/24/2015 3:30:49 PM PT Viewed: 9/24/2015 3:31:04 PM PT Signed: 9/24/2015 3:31:52 PM PT Sent: 9/24/2015 3:31:53 PM PT Viewed: 9/25/2015 5:15:53 AM PT Signed: 9/25/2015 5:17:17 AM PT Sent: 9/25/2015 5:17:21 AM PT Viewed: 9/28/2015 9:21:14 AM PT Signed: 9/28/2015 9:21:40 AM PT Sent: 9/28/2015 9:21:43 AM PT Viewed: 9/29/2015 6:32:59 AM PT StCUfttb EXHIBIT 4 Signer Events Signature Timestamp 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 Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Charleta Gilbreath Sent: 9/25/2015 5:17:19 AM PT charleta .gilbreath @cityofdenton.com Viewed: 9/25/2015 8:15:05 AM PT Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Julia Klinck� Sent: 9/25/2015 5:17:19 AM PT 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: David Dugger, Landfill Manager David.dugger @cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 4 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Accepted: 8/12/2015 3:28:06 PM PT ID: 082815fb -67cf -411 f- 8489- 750450aba331 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 9/28/2015 9:21:43 AM PT Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Josh Hylkema, David Dugger, Landfill Manager 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. 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 4 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.. 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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 Legislation Text File #: ID 15 -1215, Version: 1 Agenda Information Sheet DEPARTMENT: Legal CM/ ACM: Anita Burgess, City Attorney Date: 11/17/2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the city manager, or his designee, to execute an agreement between the City of Denton, Denton Independent School District ( "DISD ") and Zayo Group, LLC ( "Zayo ") to allow Zayo access to the City's Right -of -Way where DISD fiber conduit is located for the limited purpose of inspecting and proofing DISD conduit and indemnifying and holding the City harmless; and declaring an effective date. BACKGROUND DISD, Denton County, and the City are parties to multiple agreements in which the City allowed DISD and Denton County to use City ROW for the location of fiber conduit exclusively for educational and governmental purposes. DISD and Denton County later entered into an agreement where they allowed Zayo, subject to the City's consent to the agreement, to use City ROW used by DISD and Denton County. The City HAS NOT consented to this agreement. The agreement for consideration is simply for Zayo to access the City's ROW that is being used by DISD for inspection and proofing only; this agreement also includes a provision for Zayo indemnifying and holding the City harmless. A more detailed description of this situation is discussed in legal status. RECOMMENDATION Approval. EXHIBITS Exhibit 1 - Ordinance and Agreement. Respectfully submitted: Anita Burgess, City Attorney Prepared by: Larry Collister, Deputy City Attorney City of Denton Page 1 of 1 Printed on 11/12/2015 S:\Lega1\0ur Docunienls\Real Esta1e\DN11-`1\Fiber\Zayo Agreement Ordinance.docx AN ORDINANCE OF TI-IE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON, DENTON INDEPENDENT SCHOOL DISTRICT ("DISD") AND ZAYO GROUP, LLC ("ZAYO") TO ALLOW ZAYO ACCESS TO THE CITY'S RIGHT-OF- WAY WHERE DISD FIBER CONDUIT IS LOCATED FOR THE LIMITED PURPOSE OF INSPECTING AND PROOFING DISD CONDUIT AND INDEMNIFYING AND HOLDING THE CITY HARMLESS; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON ORDAINS: SECTION 1. The City Council of the City of Denton hereby approves the agreement between the City of Denton, the Denton Independent School District and Zayo Group, LLC to allow Zayo access to City's Right-of-Way ("ROW") where DISD fiber conduit is located for the limited purpose of inspecting and proofing the same and indemnifying and holding the City harmless for their actions in the City's ROW. A copy of the agreement is attached and incorporated by reference. The City Manager, or his designee, is authorized to execute this agreement on behalf of the City. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Im APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: r f November 11,2UB Lany[bUister Deputy City Attorney City ofDenton 215E.McKinney Denton, TX762O1 RE: Inspection and Proofing of Conduit of Denton Independent School District Conduit Located in the City of Denton (Texas) Rights-of-Way Dear Mr. Collister: As you know, Zayo Group, LLC("Zayo") is party 1oon Exchange Agreement (the "Agreement") with Denton Independent School District ("DISD") pursuant to which Zayo seeks to inspect and proof conduit owned by D|SD and located in and under rights-of-way ("ROW") owned bv the City of Denton, aTexas home rule municipal corporation ("City"). The City, in exchange for the below indemnification, grants Zayo access to its ROW where 0SD conduit is located for the limited purpose of inspecting and proofing DBDcondu\t. Regarding such inspection and proofing ofD|5D conduit located in City ROW, Zayo shall fully indemnify, hold harmless and defend (collectively "indemnify" "indemnification") the City and its Mayor and Council members, managers, directors, officers, employees, and agents (collectively, "Indemnified Parties") from and against all claims, demands, actions, suits, damages (excluding special and punitive damages), liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney's fees and costs), whether or not involving a third party claim, which arise out of or relate to the activities of Zayo (including its employees, contractors, and agents) in the Ob/s ROW, except tothe extent caused by the negligence of City, or any other Indemnified Party. and whether or not the relevant claim has merit. Further, this City's agreement to this indemnification is not a formal or informal consent to (including by, but not limited to, ratification, confirmation, sanction, endorsement, affirmation, formalization, validation, or recognition, as such consent is required to come from formal action by the City's Council) any agreement between the Zayo and D|SD for Zayo~s use ofDlSD's use of City ROW, Very truly yours, Dy|mnOeVho Associate General Counsel 18, 0 529'"S Bmu|det ,OO i 80 301, p3O", '4l4l7Zl � . dy|an�devibz��zayo�com | mm��zayozom Acknowledged and accepted by: City of Denton, a Texas home -rule municipal corporation Signature Printed Name Title Signed on the of , 2015 Zayo, Group, LLC, a Delaware limited liability company Signature Printed Name Title Signed on the of 12015 • Page 2 Denton Independent School District, a Texas independent school district Signature Printed Name Title Signed on the of . 2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -1159, Version: 1 DEPARTMENT: CM/ ACM: Date: Agenda Information Sheet Transportation John Cabrales, Jr. November 17, 2015 SUBJECT Consider approval of a resolution creating an ad hoc City Council Committee to consider and review operations, procedures, policies, regulations and naming of the City of Denton Community Event Center to be located at 121 Exposition Street, Denton, Texas and to advise the City Council with regard to these matters; and providing an effective date. BACKGROUND At the October 13, 2015, City Council Work Session, staff provided a presentation on preliminary design efforts on the proposed Community Event Center to be located at 121 Exposition. Council requested staff to bring an action item back to establish an ad hoc City Council Committee to assist with design, operations and naming efforts related to the proposed facility. Exhibit 1, is a resolution authorizing the Mayor to appoint three Council Members who will serve on the Committee until completion of the facility or January 1, 2018. The resolution outlines the "...duties and purpose of the Committee shall be to consider and review operations, procedures, policies, regulations and naming of the event center." As part of the October 13 Work Session, Council also requested that staff initiate discussions with stakeholders who may wish to utilize the proposed event center. Staff has reached out to representatives of the Denton Community Market, several stakeholders from downtown Denton festival organizations (35 Denton, Oaktopia and Day of the Dead) and representatives from Southeast Denton Neighborhood Association to receive comments on potential use of the facility as well as input on design elements for the facility. PRIOR ACTION/REVIEW (Council, Boards, Commissions) November 11, 2014 - City Council Work Session, Council considered a community event facility as part of multiple discussions related to developing a site that may also be utilized by the Denton Community Market. April 24, 2015 - Informal Staff Report updating Council on Denton Community Market location. May 26, 2015 - City Council Work Session presentation on proposed new Denton Community market location. August 6, 2015 - City Council Budget Workshop. August 18, 2015 - Budget Council Questions and Responses Memos dated August 18, 2015 and September 1, 2015. October 13, 2015 - Council Work Session. FISCAL INFORMATION A preliminary budget estimate of $253,000, based on input from the Denton Community Market, has been City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1159, Version: 1 included as part of the FY 2015 -16 Budget to facilitate non - parking lot enhancements for the proposed project. An additional $405,000 has been identified to facilitate the demolition and reconstruction of approximately one acre of pavement creating a minimum capacity to park 80 vehicles. EXHIBITS Resolution Respectfully submitted: Mark Nelson Transportation Director City of Denton Page 2 of 2 Printed on 11/12/2015 SALega1 \0ur Documents \Resolutions \15 \RESOLUTION CREATING EXPOSITION CENTER COUNCIL COMMITTEE 2.docx RESOLUTION NO. A RESOLUTION CREATING AN AD HOC CITY COUNCIL COMMITTEE TO CONSIDER AND REVIEW OPERATIONS, PROCEDURES, POLICIES, REGULATIONS AND NAMING OF THE CITY OF DENTON COMMUNITY EVENT CENTER TO BE LOCATED AT 121 EXPOSITION STREET, DENTON, TEXAS AND TO ADVISE THE CITY COUNCIL WITH REGARD TO THESE MATTERS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of Denton has authorized funding for a City Community Event Center ( "Event Center" or "Center ") in the 2015/2016 City Budget, and WHEREAS, the City Council recognizes fully the need for a Community Event Center to facilitate City, Community, and Regional events which will enhance the quality of life for Denton residents and increase visitation to the City from the surrounding region; and WHEREAS, the City has located a site for the Center at 121 Exposition Street, Denton, Texas; and WHEREAS, the City Council desires to maximize the efficiency of the Event Center and to create policies and procedures concerning use and operation of the facility, and to consider naming of the Center, or part thereof, pursuant to Resolution No. R2012 -007; and WHEREAS, the City Council of Denton has determined that it would be advisable to create an ad hoc City Council Committee to oversee the aforementioned tasks and to make any recommendations to the City Council deemed appropriate; and WHEREAS, the City Council of Denton has determined that it is advisable that the ad hoc City Council Committee shall be dissolved upon the completion of the work herein assigned or by January 1, 2018, whichever is sooner; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council hereby establishes an ad hoc committee to be called the City Council Community Event Center Committee. The Committee shall be composed of three (3) members of the City Council to be appointed by the Mayor and approved by the City Council. The City Manager, or his or her designee, will provide guidance and assistance to the Committee and be responsible for insuring that records are maintained in accordance with the requirements of the City Secretary's Office. The Committee members shall serve at the pleasure of the City Council until successors are duly appointed by the Mayor and approved by the Denton City Council. The presiding officer of the Committee shall be chosen annually by the Committee. Members of the Committee must be current elected City Council members of the City of Denton, Texas. SECTION 2. The duties and purpose of the Committee shall be to consider and review operations, procedures, policies, regulations and naming of the City of Denton Community Event Center, or any part thereof, and to make recommendations to the City Council as deemed necessary to the effectuation of these assigned tasks. SECTION 3. Upon completion of the aforementioned duties, or on January 1, 2018, the City Council Community Event Center Committee shall be dissolved without further action of the City Council. SECTION 4. 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 C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY f BY: L 6L L City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1135, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: November 17, 2015 SUBJECT Consider nominations /appointments to the City's Boards, Commissions, and Council Committees: Parks, Recreation, and Beautification Board; Traffic Safety Commission; and City of Denton Community Event Center Committee. BACKGROUND Below are the outstanding Boards and Commissions nominations and the Council Member responsible for the nomination. Parks, Recreation and Beautification Board - Janet Shelton has served three terms. Mayor Watts has nominated Frances Punch. Traffic Safety Commission - Brad Hudson has resigned. Council Member Hawkins has nominated Jim Owen. Cameron Cox has moved outside of the city limits and has resigned. This is a nomination for Council Member Johnson. City of Denton Community Event Center Committee -This is a new ad hoc Council Committee. Nominations could be made and voted on at this meeting should the Council desire. Approval would be contingent on completion of the confirmation process. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 1 of 1 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15- 0015a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: November 17, 2015 SUBJECT Hold a public hearing and consider a rezoning of approximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, approximately 2,100 feet northwest of Post Oak Drive. The Planning and Zoning Commission recommends approval of this request (7 -0). BACKGROUND In 1980, approximately 109 acres was approved as PD -12 located east of State School Road and south of Interstate 35E (S I -35E). The concept plan for PD -12 designated areas for Garden Apartments, Townhomes or Cluster Homes, Commercial, and "Shopping." The subject property is primarily located within the area of PD- 12 designated as Shopping. A timeline of PD -12 amendments and approved plans that affected the subject property are outlined below: 1986 - An amendment approved for approximately 74.8 acres within PD -12. This amendment changed the subject property from Shopping to Commercial. 1987 - A concept plan was approved for approximately 43.4 acres within PD -12. This concept plan repealed and replaced the permitted uses and general regulations of the Commercial designation. 2001 - A detailed plan was approved for the subject property that established the site plan and elevations for the Toyota of Denton auto dealership on the southern half of the property. 2004 - The detailed plan of the subject property was amended to establish the site plan and elevations for the Honda of Denton (formerly Jim McNatt Honda) auto dealership on the northern half of the property. 2005 - A detailed plan amendment was approved to allow an additional ground sign on the property. 2015 - A detailed plan amendment was approved that changed the lot coverage and landscaping requirements as well as the elevations for Toyota of Denton. During the review of the detailed plan amendment for Toyota of Denton in 2015, staff encouraged the applicant City of Denton Page 1 of 3 Printed on 11/12/2015 File #: Z15- 0015a, Version: 1 to consider rezoning the subject property out of PD -12 to a straight RCC -D zoning district. This would permit expansion or renovation of the dealership subject to current DDC regulations. The applicant was unable to receive authorization from the property owner to rezone the property at that time. Authorization has subsequently been received and the applicant is now able to pursue the rezoning. To comply with the public hearing notice requirements, five (5) notices were sent to property owners within 200 feet of the subject property, eleven (11) 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. The applicant did not hold a neighborhood meeting. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of this request (7 -0). The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 7, 2015, the Planning and Zoning Commission recommended approval of the rezoning request (7- 0). EXHIBITS 1. Staff Analysis 2. Aerial Map 3. Zoning Map 4. Future Land Use Map 5. RCC -D Permitted Uses 6. PD -12 "Commercial" Permitted Uses 7. PD -12 "Commercial" General Regulations 8. Applicant Narrative 9. Public Notification Map and Responses 10. October 7, 2015, Planning and Zoning Commission Meeting Minutes 11. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Michael J. Bell City of Denton Page 2 of 3 Printed on 11/12/2015 File M Z15- 0015a, Version: 1 Senior Planner City of Denton Page 3 of 3 Printed on 11/12/2015 h rvvm d by I cx:ls i''I City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: Z15 -0015, Version: 1 Planning Report Z15- 0015 /Toyota of Denton City Council District 4 Planning & Zoning Commission October 7, 2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of approximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, approximately 2,100 feet northwest of Post Oak Drive. (Z15 -0015, Toyota of Denton, Mike Bell) OWNER: TT of Denton Inc. APPLICANT: James Stephenson, Stephenson Architects BACKGROUND: In 1980, approximately 109 acres was approved as PD -12 located east of State School Road and south of Interstate 35E (S I -35E). The concept plan for PD -12 designated areas for Garden Apartments, Townhomes or Closter Homes, Commercial, and "Shopping." The subject property is primarily located within the area of PD- 12 designated as Shopping. A timeline of PD -12 amendments and approved plans that affected the subject property are outlined below: 1986 - An amendment approved for approximately 74.8 acres within PD -12. This amendment changed the subject property from Shopping to Commercial. 1987 - A concept plan was approved for approximately 43.4 acres within PD -12. This concept plan repealed and replaced the permitted uses and general regulations of the Commercial designation. 2001 - A detailed plan was approved for the subject property that established the site plan and elevations for the Toyota of Denton auto dealership on the southern half of the property. 2004 - The detailed plan of the subject property was amended to establish the site plan and elevations for the Honda of Denton (formerly Jim McNatt Honda) auto dealership on the northern half of the property. 2005 - A detailed plan amendment was approved to allow an additional ground sign on the property. City of Denton Page 1 of 5 Printed on 10/2/2015 File M Z15 -0015, Version: 1 2015 - A detailed plan amendment was approved that changed the lot coverage and landscaping requirements as well as the elevations for Toyota of Denton. During the review of the detailed plan amendment for Toyota of Denton in 2015, staff encouraged the applicant to consider rezoning the subject property out of PD -12 to a straight RCC -D zoning district. This would permit expansion or renovation of the dealership subject to current DDC regulations. The applicant was unable to receive authorization from the property owner to rezone the property at that time. Authorization has subsequently been received and the applicant is now able to pursue the rezoning. SITE DATA: The subject property is developed with the Honda of Denton and Toyota of Denton auto dealerships along the service road of S I -35E. There is no FEMA floodplain located within the subject property, however floodplain to the south separates the property from the single- family subdivisions further to the south in Corinth. The western side of the property is also heavily encumbered by pipeline, utility, and green space easements that limit expansion of the existing site. Phase 2 of the I -35 Express project will require approximately 75 feet of right -of -way acquisition of the property along its S I -35E frontage. USE OF PROPERTY UNDER CURRENT ZONING: PD -12 regulations limit the permitted uses of the subject property to those permitted within the Commercial and Office zoning districts under Denton's 1969 zoning ordinance with certain exceptions. The regulations also established development standards including height, area, building material, parking, and traffic requirements. Approval of the detailed plan for Toyota of Denton in 2001 was subject to the following conditions: 1. Lighting on the property shall be designed and maintained so as not to shine on or otherwise disturb adjoining property or to shine and project upward to prevent diffusion into the night sky. A lighting plan shall be submitted by the applicant for review by City staff to ensure compliance with this condition. 2. An irrigated landscaping strip at least three feet in width shall be provided along the top of the retaining wall along the southwestern boundary of the property. This strip shall be planted with vines capable of growing up along the rear fence. 3. Public address speakers shall be oriented so as not to face towards the south, southwest, or west. 4. The temporary sales building will be removed from the site within 90 days of a Certificate of Occupancy being issued for the main sales and service building. 5. The existing Oak trees intended to be preserved by the applicant shall be monitored during construction activity and during a five -year recovery period. 6. If the health of any of the existing Oak trees should decline during construction or the recovery period, the applicant shall plant replacement trees in the islands where Oak trees are removed in accordance with the Landscape Ordinance. Approval of the detail plan for Honda of Denton (formerly Jim McNatt Honda) in 2004 was subject to the following conditions: 1. Lighting on the Property shall be designed and maintained so as not to shine or otherwise disturb adjoining property or to shine and project upward to prevent the diffusion into the night sky. 2. Public address speakers shall be oriented so as not to face towards the south, southwest, or west. 3. Future development in the detention pond area will require an additional detailed plan approval. City of Denton Page 2 of 5 Printed on 10/2/2015 File #: Z15 -0015, Version: 1 If the proposed rezoning is approved, the general regulations of PD -12 and conditions of approval listed above will be replaced with the permitted uses and general regulations of the RCC -D zoning district and the standard site design regulations found in Subchapter 35.13 of the Denton Development Code (DDC). An analysis of the potential impacts of removing these conditions has been provided under the Considerations section of this report. A list of permitted uses within the RCC -D zoning district is also attached. SURROUNDING ZONING AND LAND USES: North: Properties across I -35E to the north are zoned RCC -D and are developed with Auto and RV Sales uses. East: Property directly to the east is zoned PD -12 and is undeveloped. South: Property directly to the south is zoned PD -12 and is undeveloped. West: The properties to the west are zoned RCC -D and Regional Center Commercial Neighborhood (RCC -N) and are developed with an auto dealership. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The subject property is located along a strip of S I -35E primarily developed with Auto and RV Sales including the James Wood dealership to the west, Classic of Denton to the east, and Explore USA RV Supercenter and Eckert Hyundai to the north across S I -35E. The existing auto dealerships on the property are consistent with this land use pattern and the zoning of nearby properties. COMPREHENSIVE PLAN: Development criteria of the Regional Mixed Use future land use designation include: a) A regional activity center is considerably larger and more diverse in its land uses than any other activity center. It includes vertically integrated uses where different use may occur on each floor of the building. b) Allowable uses may include national retailers, employment, restaurants and entertainment venues, and high- density housing. c) Uses should create destinations and augment the regional draw and image of Denton. d) Commercial uses should be programmed to serve a regional market and to be compatible with adjacent land uses. e) Diverse uses should be located in close proximity to one another so that all users are accessible from a single stop or by walking or bicycling. f) Development should be sited accessible to transit services. g) Places of worship, schools, and parks and open space are allowed by right. h) The character of this area should be maintained by ensuring that new development is sensitive to the surrounding built and natural context in scale and form as described above. i) Proposals should be presented and reviewed according to the degree to which they achieve the goals of the Regional Mixed Use land use and may be the subject of Small Area Plans when significant developments are proposed. CONSIDERATIONS: The applicant is requesting a rezoning from PD -12 to a RCC -D zoning district. The site has developed in a manner consistent with the RCC -D district regulations and if approved, the rezoning would ensure that any future redevelopment of the site would follow current DDC regulations. 2. Approval of the rezoning would remove the conditions of approval associated with the Detailed Plans for Toyota of Denton in 2001 and Honda of Denton in 2004. Staff does not recommend continuing these conditions as they have complied with all requirements of the PD since 2001 and there are provisions of the City of Denton Page 3 of 5 Printed on 10/2/2015 File #: Z15 -0015, Version: 1 DDC that provide similar protections to the adjacent neighborhoods: a) Four of the conditions were related to the original construction of the site, including temporary sales buildings, a five -year tree monitoring period, and retaining walls. As the site is fully constructed and these conditions have been met, they are no longer applicable. b) The Detailed Plans for both auto dealerships conditioned lighting on the property to protect adjacent properties and the night sky. If rezoned to RCC -D, these protections would still apply to the property under Subchapter 35.13.12 of the DDC which requires shielding to prevent upward diffusion of light and provides a maximum illumination of 0.5 ft.- candle at all perimeter property lines. c) The Detailed Plans for both auto dealerships also conditioned public address speakers be directed away from the homes to the south and west. If rezoned to RCC -D, the subject property would require compliance with noise reguations in the Code of Ordinances. Additionally, the site has been in operation for over ten years and has no Code violations for noise complaints on file. d) The Honda of Denton Detailed Plan has a condition that future development in the detention pond area shall require an additional Detailed Plan approval. This area of the property is highly encumbered with public utility easements and a "Permeable Area and Green Space Easement." Removal of these easements would require approval of a Final Replat by the Planning and Zoning Commission. Additionally, approval of the rezoning request would require compliance with current DDC regulations in regards to buffers, lot coverage, perimeter fence requirements, and screening that provide additional protection to the single - family neighborhoods to the south. Per Section 35.3.4.13 of the DDC, zoning changes may be approved if the proposed rezoning request conforms to the Future Land Use element of Denton Plan 2030. Per Denton Plan 2030, the subject property is designated as "Regional Mixed Use." The proposed RCC -D district is consistent with this designation. 4. Per Section 35.3.4.1) of the DDC, zoning changes may be approved is the proposed rezoning facilitates the adequate provision of transportation, water, sewer, schools, parks, and other public requirements and public convenience. The site is fully developed and all public infrastructure is adequate to serve the site. STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding development and zoning and is consistent with the goals and objectives of the Denton Plan 2030. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. City of Denton Page 4 of 5 Printed on 10/2/2015 File #: Z15 -0015, Version: 1 3. Recommend denial. 4. Table the item. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, five notices were sent to property owners within 200 feet of the subject property, 11 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. PROJECT TIMELINE: Application Received: May 7, 2015 Review Fees Paid: August 3, 2015 1" Submittal Sent to DRC Members: August 5, 2015 Comments Released to Applicant: August 21, 2015 DRC Meeting with Staff: Declined Business Days under DRC Review: 12 Business Day out to Applicant: 62 Total Business Days: 12 ATTACHMENTS: • Aerial Map • Zoning Map Future Land Use Map • RCC -D Permitted Uses • PD -12 "Commercial" Permitted Uses • PD -12 "Commercial" General Regulations • Applicant Narrative • 1969 City of Denton Zoning Ordinance - Permitted Uses • Public Notification Map Respectfully submitted: Munal Mauladad Deputy Director, Development Services Prepared by: Mike Bell Senior Planner City of Denton Page 5 of 5 Printed on 10/2/2015 1 2 DRAFT Minutes DRAFT 3 Planning and Zoning Commission 4 October 7, 2015 5 6 After determining that a quorum was present, the Planning and Zoning Commission convened a 7 Work Session on Wednesday, October 7, 2015 at 5:00 p.m. in the City Council Work Session 8 Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items 9 were considered: 10 11 PRESENT: Chair Jim Strange. Commissioners: Amber Briggle, Larry Beck, Gerard 12 Hudspeth, Devin Taylor, Andrew Rozell and Frank Dudowicz. 13 14 ABSENT: None. 15 16 STAFF: Athena Green, Earl Escobar, Julie Wyatt, Mike Bell, Sophie Huemer, 17 Munal Mauladad, Jennifer DeCurtis, and Ross Culbertson. 18 19 WORK SESSION 20 21 Chair Jim Strange called the Work Session to order at 5:00 p.m. 22 1. Clarification of agenda items listed on the agenda for this meeting, and discussion of issues not briefed in the written backup materials. 23 24 Munal Mauladad, Deputy Director of Development Services, stated staff would present each of 25 the agenda items. 26 27 Ross Culbertson, Senior Planner, provided the request for Consent Agenda Item 3A. There were 28 no questions on the plat. 29 30 Sophie Huemer, Associate Planner, provided the request for Consent Agenda Item 3B. 31 Commissioner Beck questioned what the proposed use would be. Huemer stated a use would be 32 pediatric medical center and offices. Commissioner Beck questioned the gas well tanks at the 33 intersection of Bonnie Brae Street and Scripture Street. Darren Groth, Gas Well Administrator, 34 stated there are three (3) tanks at that site. He stated they are only water tanks. Commissioner Beck 35 acknowledged. Huemer stated the proposed plat meets the fire code and Denton Development 36 Code requirements. 37 38 Mauladad stated staff will come back to Consent Agenda Item 3C once Commissioner Briggle 39 arrives. 40 41 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3, on behalf of 42 Senior Planner Mike Bell. Commissioner Beck questioned the proposed use for the site. Wyatt 43 stated the applicant intends to develop an office and warehouse space. Commissioner Beck 44 questioned if it would be considered light industrial use. Wyatt stated she hasn't received that I information. She stated the applicant would have to meet the buffer requirements as well. 2 Mauladad stated a 30 foot buffer would be required, the applicant went before the Zoning Board 3 of Adjustment to receive a variance on the buffer, which was granted for a 20 foot buffer. 4 Commissioner Beck acknowledged. 5 6 Commissioner Hudspeth questioned the preliminary plat process and the proceeding steps 7 following the preliminary plat. Mauladad provided the steps for the preliminary and final plat 8 process. Jennifer DeCurtis, Deputy City Attorney, stated the preliminary plat process is to make 9 sure the developer is on the right track before moving forward with additional steps. Chair Strange 10 informed Commissioner Hudspeth of the Development Review Committee Pre - Application 11 process as well. 12 13 Commissioner Briggle arrived to the meeting. 14 15 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3E. She stated the 16 plat was approved by this Commission in the past, however, the applicant has decided to detain 17 onsite instead of underground. Commissioner Beck questioned the ingress and egress from the 18 subject site onto Teasley Lane. Earl Escobar, Engineering Development Review Manager, stated 19 the construction plans for the site indicate two entrances off of Teasley Lane. There will be one on 20 the common property line and one to the north of the property. Escobar stated both of the entrances 21 will have a dedicated right -turn lane to transition into the site. He stated the entrance to the north 22 will have a dedicated left -turn lane into the site. 23 24 Commissioner Beck questioned if there was any consideration to only make the entrances to the 25 site on Teasley Lane and the egress to the site on Hickory Creek Road. Escobar stated there was 26 concern with the north entrance to allow only a right -turn egress. Commissioner Beck 27 acknowledged. 28 29 Commissioner Dudowicz questioned if there are preliminary drawings for the Texas Department 30 of Transportation (TxDOT) for the entire Teasley Lane project. Escobar stated he is not familiar 31 with the entire project. Escobar stated the proposed designs for the subject site have been 32 coordinated with TxDOT. Commissioner Dudowicz requested contact information for the Texas 33 Department of Transportation (TxDOT) liaison with the City, he requested a meeting with TxDOT 34 to discuss their proposed timelines along with proposed development for various roads with 35 Denton, primarily including the Teasley Lane area. 36 37 Commissioner Dudowicz questioned expansion plans for Hickory Creek Road. Escobar stated 38 Sprouts Farmers Market would widen Hickory Creek Road with turn lanes at their site. 39 Commissioner Dudowicz questioned expansion plans for Ryan Road. Escobar stated Wal -Mart 40 would be required to make those updates. DeCurtis reminded the Commission to stay on topic. 41 Commissioner Dudowicz stated it has to do with the traffic for the area. 42 43 Commissioner Taylor questioned the expected date for the TxDOT widening of Teasley. Escobar 44 stated August 2017, with a three to five year completion time. 45 2 I Chair Strange stated since Commissioner Briggle has arrived the Consent Agenda Item 3C can be 2 discussed. 3 4 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3C. Commissioner 5 Briggle questioned the circles on the plate. Wyatt stated those are the blocks, she stated the 6 applicant can add that wording to the plat to make it clear. Commissioner Briggle stated on other 7 plats, even if a gas well isn't on the site the gas well has been added to the plat in a greyed out 8 color to indicate the neighboring gas well, she stated she did not see that on this plat. Wyatt stated 9 there is a gas park located within Robson Ranch adjacent to this property, she stated it wasn't 10 added to the plat. 11 12 Commissioner Briggle stated they are normally at least identified on the plat. Munal Mauladad, 13 Deputy Director of Development Services, stated this site is a Planned Development, therefore, 14 the items are dictated differently on the site. Commissioner Briggle acknowledged. 15 16 Commissioner Beck questioned the neighboring gas wells. Wyatt stated the plat meets the 17 requirements of the Robson Ranch Planned Development; the development has their own set of 18 requirements. Darren Groth, Gas Well Administrator, and Mauladad provided information the 19 Planned Development requirements. 20 21 There were no questions from the Commissioners for Agenda Items 4A, 5A, and 5B. 22 23 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 5C, on behalf of 24 Senior Planner, Mike Bell. Commissioner Beck questioned if Toyota of Denton and Honda of 25 Denton were leasing the site. Wyatt stated she is not aware of those business details. Commissioner 26 Beck questioned the purpose of needing to rezone the site. Wyatt stated the subject site is a Planned 27 Development which requires a set process to make any changes to the site. She stated the applicant 28 would rather rezone the site in order to make those changes. 29 30 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 51), on behalf of 31 Senior Planner, Mike Bell. She provided the Commission with a handout from one of the returned 32 responses for the public notices. Commissioner Dudowicz questioned if the TA Truck Stop parallel 33 to the subject site on I -35 would have to be addressed as well, Wyatt confirmed. 34 35 Commissioner Briggle questioned the neighboring residential site. Wyatt stated she wasn't aware 36 of a neighboring residential property. Commissioner Rozell stated there is a house next to Foster's 37 Western Wear. Commissioner Briggle questioned buffer requirements. Wyatt stated the subject 38 site would be considered an institutional use, the neighboring site is vehicle repair, which is a 39 commercial use; therefore, a buffer would not be required. 40 41 Commissioner Rozell stated he has concerns with traffic in the area. He stated traffic coming from 42 Krum, Texas, has to come down Farm to Market Road (FM) 1173 to intersect with I -35. The traffic 43 in the morning at this time gets backed up heavily. Wyatt stated in the future Barthold Road is 44 proposed to be improved and to intersect with North Elm Street, which should alleviate some of 45 the traffic on FM 1173. 46 3 I Earl Escobar, Engineering Development Review Manager, stated during the plat process I -35 and 2 North Elm Street would be aligned with a signaled intersection. Commissioner Rozell stated that 3 will address a portion of the traffic. He stated he still has concerns with the underpass being a small 4 space for the amount of semi - trailer trucks in the area. He questioned if the expansion would 5 address the underpass. Escobar stated not at this time, the proposed I -35 expansion project stops 6 at Highway 380 and I -35. He stated the subject site area would be until approximately 2030. 7 8 Ross Culbertson, Senior Planner, provided the request for Public Hearing Item 5E. He stated the 9 applicant sent their own property notification letter in addition to the one staff sends out. 10 Commissioner Taylor questioned if the proposed development allows space for the proposed 11 realignment of Post Oak Drive to University Drive. Culbertson stated the realignment doesn't 12 interfere with the subject site, it develops around the site. 13 14 Earl Escobar, Engineering Development Review Manager, stated when the development comes to 15 the area staff will ensure that the right -of -way is met with the proposed realignment. Commissioner 16 Taylor acknowledged. 17 18 Commissioner Taylor discussed setbacks and buffers to separate the subject site from the 19 neighboring City of Denton Landfill and Treatment Plant site. Munal Mauladad, Deputy Director 20 of Development Services, stated the City of Denton Landfill site has a Capital Improvement Plan 21 program, which would be related to the setbacks and buffer requirements. Commissioner Taylor 22 questioned if those would be during the planning process. Mauladad confirmed. 23 24 Commissioner Briggle stated this is the first project with a conservation development to come 25 before this Commission since the update of the Comprehensive Plan. She stated she likes to see 26 these types of developments. She questioned when this Commission would start seeing more 27 conservation developments. Culbertson stated the applicant initiated the development with staff's 28 support. He stated when staff reviews a project with an applicant they will work more on these 29 types of developments. 30 31 Commissioner Dudowicz stated he agrees with Commissioner Briggle's comment. Mauladad 32 stated the Denton Development Code (DDC) and the Comprehensive Plan do not communicate on 33 the same level. She stated staff is aware the elements of the Comprehensive Plan and critical. She 34 stated an overhaul of the DDC needs to take place as well. 35 36 Chair Strange adjourned the Work Session at 6:16 p.m. 37 38 REGULAR MEETING 39 40 The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, October 41 7, 2015 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 42 the following items were considered: 43 44 Chair Strange called the Regular Meeting to order at 6:39 p.m. 45 46 1. PLEDGE OF ALLEGIANCE 4 I A. U. S. Flag 2 B. Texas Flag 3 4 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION 5 MINUTES FOR: 6 7 A. PZ15 -009 SEPTEMBER 16, 2015 8 9 Commissioner Devin Taylor motioned, Commissioner Amber Briggle seconded to approve the 10 meeting minutes. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner 11 Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye" 12 Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner 13 Andrew Rozell "aye ". 14 15 3. CONSENT AGENDA: 16 A. PP15 -0026 Consider a Preliminary Plat of Block A, Lots 7 & 8 of the Westpark Industrial Addition. The approximately 27.56 acre property is generally located on the northeast corner of Airport Road and South Western Boulevard within the J. Davis Survey, Abstract No. 326. (PP15 -0026, Westpark Industrial, Ross Culbertson) 17 B. FP15 -0028 Consider a Final Plat of Lot 1 Block A, of the Cook Children's Rayzor Ranch Addition. The approximately 3.32 acre subject property is generally located at the north side of Scripture Street and 1300 feet east of Interstate Highway 35, within the B.B.B. & C.R.R. Survey, Abstract No. 192. (FP15 -0028, Cook Children's Rayzor Ranch Addition, Sophie Huemer) 18 C. FP15 -0019 Consider a Final Plat of Robson Ranch, Unit 10 -2. The approximately 25 acre subject property is generally located 520 feet northwest of the corner of Michelle Way Street and Crestview Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (FP 15 -0019, Robson Ranch, Unit 10 -2, Julie Wyatt) 19 D. PP15 -0019 Consider a Preliminary Plat of Lot 1, Block A of the Perfect Finish Landscaping Addition. The approximately 4.99 acre subject property is generally located on the north side of Fishtrap Road, approximately 500 feet east of Geesling Road. (PP15 -0019, Perfect Finish Landscaping, Mike Bell) 20 E. FP15 -0024 Consider a Final Plat of the Sprouts Addition. The approximately 7.02 acre property is generally located on the northwest corner of Teasley Lane (FM 2181) and Hickory Creek Road. (FP15 -0024, Sprouts Addition, Mike Bell) 21 22 Commissioner Amber Briggle motioned, Commissioner Frank Dudowicz seconded to approve the 23 Consent Agenda. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner 24 Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye" 5 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 Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 4. ITEMS FOR INDIVIDUAL CONSIDERATION A. PZ15 -010 Consider and appoint a member for the Planning and Zoning Commission Chair and Vice -Chair positions. Commissioner Devin Taylor motioned, Commissioner Andrew Rozell seconded to ratify the election of Jim Strange as Chair and Amber Briggle as Vice - Chair. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 5. PUBLIC HEARINGS A. FR15 -0012 Hold a public hearing and consider a Final Replat of Lots 1R, 2R, 3R, 5R, 6R, 8R, 9R, and IOR, Block A of the Rayzor Ranch Town Center, Phase I. The aproximately 99.532 acre property is _ generally located at the southeast corner of University Drive (US 380) and Interstate Highway 35 (I -35), within the B.B.B. & C.R.R. Survey, Abstract 192. (FR15 -0012, Rayzor Ranch Town Center Phase 1, Sophie Huemer) Chair Strange opened the Public Hearing. Sophie Huemer, Associate Planner, provided the presentation for this request. There were no questions from the Commissioners. There was no one to speak during the Public Hearing. Chair Strange closed the Public Hearing. Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". B. FR15 -0003 Hold a public hearing and consider a Final Replat of Block A, Lots 2R -1, 3 & 4 of the Mid States Realty Subdivision. The 5.13 acre property is generally located on the west side of Loop 288, approximately 800 feet north of Spencer Road within the Mary L. Austin Survey, Abstract No. 4. (FR15 -0003, Mid States Realty Subdivision, Ross Culbertson) Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the presentation for this request. There were no questions from the Commissioners. Greg Edwards, Greg Edwards Engineering Services, 1621 Amanda Court, Ponder, Texas. Edwards stated he represents the owner. He would like to create two pad sites for future development. There was no further discussion. There was no one else to speak, Chair Strange closed the Public Hearing. Commissioner Devin Taylor motioned, Commissioner Larry Beck seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 11 I "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 2 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 3 C. Z15 -0015 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, aproximately 2,100 feet northwest of Post Oak Drive. (Z15 -0015, Toyota of Denton, Mike Bell) 4 5 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 6 presentation for this request. She stated staff recommends approval of this request. There were no 7 questions for staff. There was no one to speak during the Public Hearing. Chair Strange closed the 8 Public Hearing. 9 10 Commissioner Frank Dudowicz motioned, Commissioner Andrew Rozell seconded to approve 11 this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber 12 Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner 13 Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell 14 "aye ". 15 D. Z15 -0025 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 15.811 acres from a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located at the southwest corner of N I -35 and Barthold Road. (Z15 -0025, Love's Travel Stop, Mike Bell) 16 17 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 18 presentation for this request, on behalf of Senior Planner, Mike Bell. She stated staff recommends 19 approval of this request. The applicant is present. 20 21 Commissioner Rozell shared his concerns with the traffic in the area. He stated the traffic concerns 22 will only get worse with the proposed development. Rozell stated the I -35 underpass is already a 23 small intersection. Wyatt stated those concerns would normally be addressed during the platting 24 process. She stated a traffic analysis would be completed at that time as well. 25 26 Commissioner Rozell stated he would like to see Barthold Road and Farm to Market Road 1173 27 reviewed during the traffic analysis. Earl Escobar, Engineering Development Review Manager, 28 stated if this Commission has concerns with those areas the traffic analysis can address them during 29 the platting process as well. There was no further discussion. 30 31 The following individuals spoke during the Public Hearing: 32 33 Jeremey Reese, 4420 Jackson Road, Marianna, Florida. Reese stated he is the applicant 34 and is present for questions, he does not have a presentation. 35 7 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 Mike Ososanya, 4981 Barthold Road, Denton, Texas. Stated he has concerns with noise and pollution in the area. He represents the property owner to the west of the subject site. Commissioner Dudowicz questioned Ososanya on the use of the site he represents. Ososanya stated a Wingfoot Commercial Tire Systems. Samuel Akinniyi, 1516 Vista Verde Street, Denton, Texas. Support of this request. Commissioner Rozell stated the traffic issue needs to be addressed immediately. Chair Strange read public response received from Joseph Agbo into the record. Agbo did not stated if he was in favor or opposed to the request. There was no one else to speak Chair Strange closed the Public Hearing. Commissioner Hudspeth requested clarification from the applicant. Chair Strange opened the Public Hearing for clarification. Commissioner Hudspeth requested clarification from the applicant for the proposed overview of the site. Jeremey Reese, applicant, stated there will potentially be two or three restaurants within the Love's Travel Stop. He stated he isn't certain which ones those will be at this time. There will be one of those restaurants with a drive -thru. The back of the site would contain the truck area and diesel bays. There will also be a light tire maintenance on the site. Commissioner Beck questioned if the business would be opened 24 hours a day seven (7) days a week. Reese confirmed. Commissioner Briggle questioned if a buffer is not required neighboring the church, then the church would be required to install a buffer if they wanted one. Wyatt confirmed. There was no further discussion. Chair Strange closed the Public Hearing. Commissioner Frank Dudowicz motioned, Commissioner Gerard Hudspeth seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell it E. Z15 -0024 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 20.0 acres from a Neighborhood Residential Mixed Use (NRMU) District to a Neighborhood Residential 4 (NR -4) District. The subject property is generally located on the south side of East McKinney Street (FM 426), aproximately 2,330 feet east of Orr Road. (Z15 -0024, Pecan Park, Ross Culbertson) Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the presentation for this request. He stated staff recommends approval of this request. Commissioner Rozell questioned the expectation of rural future land use. Culbertson stated rural was designated E3 I for larger lots within rural areas. Commissioner Rozell questioned if that was the expectation for 2 the Denton Plan 2030 updated. Culbertson confirmed. There were no further questions for staff. 3 4 Rod Zielke, ZPS Consulting Engineers, 1111 S. Main Street, Grapevine, Texas. Zielke stated he 5 doesn't have a presentation, he is available for questions. 6 7 Commissioner Briggle requested additional information from Zielke for this conservation 8 development plan request. Zielke stated this is the preliminary stage, he wanted to submit this stage 9 before they got into too much detail with the plan. The property has natural features, flood plain, 10 and heavily treed. Zielke stated the site is conducive to the conservation development. 11 Commissioner Briggle thanked Zielke for his work on this project. 12 13 Commissioner Beck questioned if the 20 acre development would be single- family residential. 14 Zielke stated the entire site would be 80 acres if the zoning for the 20 acres is approved. He stated 15 he would like to see it as a large tract of land. Commissioner Beck questioned if it would be single - 16 family residential. Zielke confirmed. 17 18 The following individual spoke during the Public Hearing: 19 20 Jeff Hardgrave, Atmos Energy, 5420 LBJ Freeway, Suite 1528, Dallas, Texas. Hardgrave 21 stated he wanted to make sure the applicant and Commission is aware that Atmos has a high 22 pressure pipeline underground neighboring the subject site. He stated he is not opposed to the 23 request, he just wanted it brought to the attention of this Commission. 24 25 Commissioner Taylor questioned if it is a gas well. Hardgrave stated it is a natural gas storage 26 well. There is gas drilling to the site, however, there is no fracking on the site, the process does not 27 require fracking. 28 29 Commissioner Dudowicz questioned how deep the pipeline is laid, Hardgrave stated 30 approximately 36 -48 inches deep. 31 32 Commissioner Briggle reminded the Commission that the item before them is the rezoning request, 33 it is not to review the site plan 34 35 There was no one else to speak, Chair Strange closed the Public Hearing. 36 37 Commissioner Rozell stated he feels the rezoning is compatible with the surrounding area. He 38 stated he does have concerns with the future land use. There was no further discussion. 39 40 Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this 41 request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 42 "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 43 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 44 6. CONCLUDING ITEMS p] 1 2 Commissioner Briggle stated he is glad to see potential for conservation developments within the 3 community. She stated she would like to see an overview of where this is headed in the future. 4 5 Commissioner Taylor requested an agenda item to discuss the potential for a subcommittee of this 6 Commission. 7 Commissioner Dudowicz questioned if conditions are placed on an item what does staff do to 8 ensure those conditions are met. Munal Mauladad, Deputy Director of Development Services, 9 stated there are various steps associated with the approval process and conditions. She stated once 10 a project is submitted for a permit those conditions have to be met during the permitting and 11 inspection process. She stated if there are items not being met she would like those brought to her 12 attention and she will research them. 13 14 Commissioner Hudspeth stated he would like to see this Commission receive information earlier 15 in the process, if the City is aware of information to provide before it comes to this Commission 16 for review. Mauladad stated some of the items that come to the City for development are Building 17 Inspection related and others are Planning Division related. She stated she will meet with staff to 18 see if there is a process to gather information from both departments to provide to this Commission. 19 20 Chair Strange stated he would like to see an upcoming Work Session Item to discuss definitions, 21 street paving, developer responsibilities, and other requirements for traffic and street 22 improvements. Mauladad stated staff will bring something back to this Commission to address 23 those items. 24 25 Chair Strange thanked staff for providing this Commission with an updated matrix, he stated it has 26 been helpful. There was no further discussion, Chair Strange adjourned the Regular Meeting at 27 7:45 p.m. 28 29 10 S:\t,egal\Our Documents\0rdinances\ I 5V 15-0015 Final Ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, "TEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A PLANNED DEVELOPMENT DISTRICT 12 (PD-12) ZONING AND USE CLASSIFICATION TO A REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING AND USE CLASSIFICATION ON APPROXIMATELY 15.02 ACRES OF LAND GENERALLY LOCATED ON THE SOUTH SIDE OF SOUTH INTERSTATE 35 EAST, APPROXIMATELY 2,100 FEET NORTHWEST OF POST OAK DRIVE, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0015) WHEREAS, on June 3, 1986, by Ordinance 86-109, the City Council approved an amended Planned Development District zoning and use classification for approximately 74.8 acres of land generally located on the South side of S. Interstate 35 East, approximately 2,100 feet Northwest of Post Oak Drive in the City of Denton, Texas ( "PD -12 ") and related Concept Plan; and WHEREAS, on May 5, 1987, by Ordinance 87-084, the City Council approved an amended Concept Plan for approximately 43.4 acres of land within PD-12 in order to repeal and replace permitted uses and general regulations; and WHEREAS, from 2001 to present, the City Council approved several Detailed Plans and/or amendments to Detailed Plans for auto dealerships Toyota of Denton and Honda of Denton, including amendments pursuant to Ordinances Nos. 2001-149, 2004-064, and 2005-047 related to 15.02 acres of land within PD-12 legally described in Exhibit "A", attached hereto and incorporated herein by reference (hereinafter, the "Property") and also depicted on Exhibit "B", attached hereto and incorporated herein by reference; and WHEREAS, on May 7, 2015, Stephenson Architects applied for a zoning change on the Property from a PD-12 zoning and use classification to a RCC-D zoning and use classification to expand and develop more efficiently pursuant to Denton Development Code regulations; and WHEREAS, on October 7, 2015, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (7-0) of the change in zoning district and use classification; and WHEREAS, on November 17, 2015, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the Property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The zoning district and use classification for the Property is hereby changed from PD -12 to RCC-D. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record- Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: Jf,,NNlFf,'.R WAI...TERS, CITY SECRETARY mg APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 6d; Exhibit A Legal Description Exhibit B Location Map Z15 -0015 Site Location / Aerial Map SITE Parcels F�a ° �r uiuuuuuu�uiiiui�iii��lllllllllllllll 1� .2 DENTON Roads I'llaninhTg Depiftrytient - GIG Date: 8/10/2015 ne s oT uenton nas prepares maps or oepanmentai use, I nese are not om-1 maps or the uty th or uenton ano snouio not De used Tor iegai, engineering or surveying purposes out ratner Tor reterence purposes. I nese maps are e property or the uty oT (ty 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. III Z15 -0015 Site Location / Zoning Map IIII��� ��PoII���I��� %111VIIVIIIIIIIIIIII IIII D //O//� /D /D/O//a��// O �0 � o II�IV11110 t'�iiaiimia min % %�o �SM1�°� ���" VVIUIIIIIIII �V��l��'� I�II�V���UII�UI�VU���� !aNhIVVIIUt V� �/// iaiaiiimi000rmir�� ©iioiiaoiaiiia / %��� y� 0 611$ IVIIVIIVIIVIIillllllllllllllllll G��IPOf„ iuu� %uuulouomi IIIIIIIII �V��IIIIIIII��UIIU�UIIIU�UIII��UIII��IIIIU�IIIII�U�UI�I�u "o" IIIIIIIIIVIu����I��I��I�I�II�I�IIIII��III�������1 %�II���IIII������ �� Vu %��� o o DCl ETJ _2 IUIIV��I�����II���II l ca SITE ETJ NRMU RCC -N N LLJ f o 211 111 1,121 .. Parcels NR -2 h ��� " ^ „�H �H� NRMU -12 RCR -1 s ti H� f'a a Roads NR -4 PD �� RD -5X ( ����� . �����IIIIIIIIIIIIIIIIIIIIIIIII DETON NR -6 RCC -D I'lla ������ng Depa ttrytent GIG Date: 8/7/2015 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 -0015 Site Location / Future Land Use Map Business Innovation nnvGK MIN iPil I I', LONGMONT W J PHOTIN1 � o O iz aMARSH RAIL x c� UUM o ' o o t o o LOW .o Residential CS Op`� rg, IKOU N .. i'-P '� Jr reer SITE Future Land Use Neighborhood Mixed Use Parcels Low Residential Business Innovation 's Roads Moderate Residential Government/ Institutional �; �r �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� Regional Mixed Use ���� Parks / Open Space �u.` DENTON Community Mixed Use ��'Iluu�unf�u,5 ¢metra�uturro�eurot GIG �- Date: 8/7/2015 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. Regional Center Commercial Downtown Permitted Uses RESIDENTIAL: P Agriculture, Attached Single- family Dwellings, Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled L(7) Livestock L(6) & L(4) Multi - Family Dwellings SUP Group Homes COMMERCIAL: P Home Occupation, Hotels, Bed and Breakfast, Retail Sales and Service, Movie Theaters, Restaurant, Private Club, Bar, Drive - through Facility, Professional Services and Offices, Quick Vehicle Servicing, Vehicle Repair, Auto and RV Sales, Laundry Services, Indoor Recreation, Commercial Parking Lots, Administrative or Research Facilities, Broadcasting or Production Studio L(38) Temporary Uses SUP Major Event Entertainment INDUSTRIAL: P L(12) L(13) L(23) L(27) Bakeries, Veterinary Clinics Craft Alcohol Production Warehouse, Retail Light Manufacturing Gas Wells INSTITUTIONAL: P Community Service, Parks and Open Space, Churches, Semi - Public Halls, Clubs, and Lodges, Business/Trade School, Adult or Child Day Care, Middle School, High School, Colleges, Conference /Convention Centers, Hospital, Elderly Housing, Medical Centers, Mortuaries SUP Basic Utilities, WECS (Free- standing Monopole Support Structure), WECS (Building Mounted) P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) = Multi- family is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi - family use within one (1) year prior to the effective date of Ordinance No. 2005 -224; or 5. If allowed by a City Council approved neighborhood (small area) plan. L(6) = Permitted only on second (2nd) story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. 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(12) = On- premise consumption and /or retail sales is required. Uses are limited to no more than 10,000 square feet of gross floor area for production, bottling, packaging, storage, and other manufacturing related activities. A SUP is required for additional square footage. L(13) = Uses are limited to no more than fifty -five thousand (55,000) square feet of gross floor area per lot. L(23) = Light manufacturing of products sold on site permitted, area of manufacture not to exceed five thousand (5,000) square feet. 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. 3 Development Standards (3 of 4) COMMERCIAL SHOPPING PERMITTED USES All uses as permitted in the commercial and office zoning districts, except that the following uses shall not be pp rrr - ted Amise er Commercial (outdoor), Drag Strip or ox ercial Racing Asphalt or Concrete Batching Plant (permanent) Brick Kiln or Tile Plant Cemetery or Mausoleum Dormitory, Boarding or Rooming House Dump or Sanitary Fill Area Extraction and Sale of Sand, Caliehe, Stone, Clay or Gravel Fairgrounds or Exhibit Area Go -Cart Track Halfway House Hatchery, Poultry Hauling or Storage Company Heavy Machinery Sales and Storage Home for Care of Alcoholic, Narcotic or Psychiatric Patients Livestock Auction Livestock Feeding Plant, Pens or Yards Mining or Storage of Mining Wastes Open Salvage Yard for Rags or Machinery, etc Petroleum Collecting or Storage Facilities Private Utility Shop or Storage Yard Rodeo Grounds Sand, Gravel or Earth Sales or Storage Stable, Commercial, Rental Stable, Boarding Stable, Private Club Storage and Sales of Furniture or Appliances Outside a Building Theater, Drive -In Tire Re- Treading or Capping Tool Rental Trailer Camp or Mobile Home Park Trailer Rent 1 r Sales Used Auto Pa is Sales Development Standards (4 of 4) REQUIREMENTS Height Requirements Maximum of eight (8) stories Area Requirements Front Yard - Minimum twenty -five (25) feet Side Yard - Minimum fifteen (I5) feet Rear Yard - No rear yard is required Landscaped Open Space - Five percent (50) of the total lot area shall be maintained as landscaped open space Lot Coverage - Maximum fifty percent (500) by buildings Floor Area Ratio Maximum I I Building Materials The main building exteriors shall be constructed of glass, stone, brick, tiles, cement, concrete, or similar materials, or any combination thereof Parking Requirements One (1) off - street parking space shall be provided or each three hundred square feet (3001) of floor space Traffic Requirements 1 When the level of service changes from C to D at the unsignalized intersection of State School Road and the service roads of Interstate Highway 35 -E, or accidents at the above mentioned intersection exceed the guidelines of the State Highway Department as determined by the City Engineer, then, as a condition of receiving building permits thereafter, 13 3% of the cost of the signalization equipment needed at that intersection or $5,200 00, whichever is less, shall be paid to the City of Denton, if the City of Denton would be responsible for the necessary signalization equipment 2 By the date of any one or more land use shown in the attached list of "Phase III Land Uses" is projected to generate vehicular traffic in excess of 5,000 trips per day, as determined by the city Engineer, but in no case later than January 1, 1992, a revised traffic study for the entire 725 acre development, specifically addressing, all traffic needs for that part of the development located within the City of Denton, must be submitted to the City Engineer Stephenson Architects _' Dealership Design a- Planning a- Consulting Zoning Change Project Narrative Toyota of Denton 4100 S 135 E AND Honda of Denton 4050 S I H 135 E Denton, Texas BACKGROUND- HISTORY Toyota of Denton and Honda of Denton were originally constructed as Jim McNatt Toyota - Dodge and Jim McNatt Honda, the buildings were completed in 2002 and 2005 respectively. Both franchises' and property were purchased by AMSI in January 2014, the Toyota facility is located on 7.52 acres and Honda is located on 7.43 acres, there is also a 0.07 acre tract included in the zoning change request. All three tracts are platted as Lots 1, 2, and 3, Block A, McNatt Addition, all three tracts are zoned PD -12. SURROUNDING PROPERTIES The lot adjacent to and northwest of Lot 1 is platted as Lot 4R Block A, McNatt Addition, it is zoned RCC -D. Adjacent to Lot 4R and extending to State School Road is the James Wood Autoplex, this zoning is RCC -N. Adjacent to Lot 2 and extending southeast to the City Limit is unplatted property zoned PD -12. The PD -12 zoning extends south across the creek to the City Limit and beyond the creek into the residential neighborhood. The current use for all properties in this area along the frontage road from State School Road southeast to the City Limit is automobile sales and service. 1 *06"]910 015y11=KKe]019111 M 0 The three tracts included in this zoning change request are fully developed with all city and franchise utilities available and connected, and storm water infrastructure in place. :! :1019001 M 191 M II Kole] ►19111 Eel 0 No changes to infrastructure, topography or drainage are anticipated. An addition of approximately 2,000 square feet is planned to the existing detail building at Toyota after the zoning change. This addition will displace existing paving, connect to utilities currently serving this building and will comply with the requirements of RCC -D zoning. END OF NARIATIVE 2(2 Jeffiel cal I IaI Ikwaor ai L ` of d I„ I ryas Ai k tie" 817,737,8094 v jasaicli(dnslDcglolDa iiel: Z15 -0015 Site Location / Notification Map 0 o. m o rM o o oo o :.. 0 o m o ° �ry���p �UJtAIF11b o o n •003 ° m ca o• o c o o o X oy, % ° %M Vi o Ikk '0 o 'o' o SITE N .Jr�1� W E� . - o zss 510 1,— wee VI,"" Parcels F �j ° uiuuuuuu�uiiiui�iii��lllllllllllllll DENTON Roads �Z I I'llanintng DepaUtrytient - GIG Date. 8 /7/2015 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. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15- 0024a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: November 17, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a change in the zoning classification from a Neighborhood Residential Mixed Use (NRMU) District and use classification to a Neighborhood Residential 4 (NR -4) District and use classification on approximately 20.0 acres. The subject property is generally located on the south side of East McKinney Street (FM426), approximately 2,330 feet east of Orr Road, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of this request (7 -0). BACKGROUND The applicant is requesting a zoning change to a NR -4 District for the 20.0 acre subject property in order to develop a single- family residential subdivision. The approximately 60 acres south of the subject property is already zoned NR -4 and will be included in the overall acreage owned by the developer for planning a unified development. The subject property was placed in the NRMU District as part of the 2002 city -wide zoning initiative. Since that time, the property nor the adjacent area context has developed to the anticipated intensity as most of the properties have remained as rural homesteads and agricultural land. The NRMU District does not fit with existing uses in the area and the city's growth patterns have not warranted such intense zoning at this time. A more appropriate zoning sequence would be to introduce low to moderate residential zoning on the subject property to encourage future development consistent with the Denton Plan's comprehensive goals. The Denton Plan 2030's Future Land Use Plan designates the subject property as "Rural Areas ". This category includes farms and ranches as the predominate use along with rural (very low density) residential and rural commercial uses. This land use may allow lots as one acre or half an acre under the gross density provision to allow for conservation development which clusters small lots while permanently protecting scenic rural open space. The applicant's request to rezone to a NR -4 District does not conform to the designated Future Land Use category of Rural Areas with respect to the desired residential density. However, the Future Land Use Map does depict "Low Residential ", to the northwest of the subject property and to the far south across Pecan Creek. It is reasonable to consider the applicant's request as there is a need to introduce more residential development to this area of the city. The additional 60 acres to the south aids in the effort to plan for single- family developments as it is already zoned as a NR -4 District, supporting low to medium residential density. Although City of Denton Page 1 of 3 Printed on 11/12/2015 File #: Z15- 0024a, Version: 1 the NR -4 District represents a medium range of density, the applicant intends to follow the Denton Plan's objectives for developing in rural areas by incorporating a "conservation development" to protect natural features on site and cluster single- family lots in planning the future residential subdivision. The applicant's response to the site constraints and planning a conservation development aids in staff's support for the increased density. Should the applicant's rezoning request be approved, a more complete transition point would be made on the eastern property line of the subject property in distinguishing between Low Residential and Rural Areas. Staff has analyzed the proposal and has determined that it conforms to the conditions for approval set forth in Sections 35.3.3.B.3 and 35.3.4.B of the Denton Development Code (DDC), is compatible with the adjacent land uses, and meets the goals of the Denton Plan 2030. To comply with the public hearing notice requirements, four notices were sent to property owners within 200 feet of the subject property, seven 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 received one response in favor of the zoning request. The applicant also made their own outreach measures to the community by mailing a flyer to the same seven residents within 500 feet to gain feedback over the development proposal. No additional comments have been gained from this outreach effort. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of this request (7 -0). The Development Review Committee recommends approval of this request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 7, 2015 the Planning and Zoning Commission recommended approval of the rezoning request (7- 0). EXHIBITS 1. Staff Analysis 2. Site Location/Aerial Map 3. Zoning Map 4. Future Land Use Map 5. Permitted Uses in NRMU City of Denton Page 2 of 3 Printed on 11/12/2015 File #: Z15- 0024a, Version: 1 6. Permitted Uses in NR -4 7. Public Notification Map and Responses 8. October 7, 2015, Planning and Zoning Commission Meeting Minutes 9. Draft Ordinance Aimee Bissett Prepared by: Ross Culbertson Senior Planner Respectfully submitted: Director of Development Services City of Denton Page 3 of 3 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: Z15 -0024, Version: 1 Planning Report Z15- 0024 /Pecan Park City Council District 2 Planning & Zoning Commission October 7, 2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of approximately 20.0 acres from a Neighborhood Residential Mixed Use (NRMU) District to a Neighborhood Residential 4 (NR -4) District. The subject property is generally located on the south side of East McKinney Street (FM 426), approximately 2,330 feet east of Orr Road. (Z15 -0024, Pecan Park, Ross Culbertson) OWNER: Kenneth B. Newell of Tarrant Acquisition Ltd. APPLICANT: Rodney Zielke of ZPS Consulting Engineers BACKGROUND: The applicant is requesting a rezoning to NR -4 District in order to develop a single- family residential subdivision. The applicant is proposing to develop the subject property in conjunction with an additional 60 acres already zoned NR -4 to the south. On August 3, 1999, the City Council annexed 75.71 acres under Ordinance No. 99 -258 which included the subject property. At the same meeting the City Council also approved Ordinance No. 99 -259 establishing the annexed area within an Agricultural (A) zoning district. In 2002, as part of a city -wide zoning initiative the subject property was zoned to a NRMU District. The area along the north side of East McKinney Street was also zoned to a NRMU District. Since 2002, the area has not developed to the anticipated intensity as most of the adjacent properties have remained as rural homesteads and agricultural land. SITE DATA: The subject property is undeveloped and has a trapezoidal shape following the alignment of East McKinney Street. There is a 50 foot Atmos Energy Pipeline Easement which runs on a sharp diagonal from the northwest to southeast across the southwest corner of the site. There are trees at the northeast corner of the subject property adjacent East McKinney Street and substantial groves of trees to the south of the subject property. USE OF PROPERTY UNDER CURRENT ZONING: The purpose of the NRMU District is to encourage higher density residential units and an active node of retail and commercial services to support adjacent neighborhood areas. These activity centers primarily allow for a mix of neighborhood- oriented retail, office, and service uses with allowances for townhome, civic uses, and limited multi -story apartments. The NRMU District may also serve as a transition between established neighborhoods and non - residential zoning districts. A schedule of permitted uses within the NRMU District is City of Denton Page 1 of 5 Printed on 10/2/2015 File #: Z15 -0024, Version: 1 attached for your reference. SURROUNDING ZONING AND LAND USES: North: Property to the north across East McKinney Street is zoned NRMU District and is undeveloped with the exception to one single family residence and a residential mobile -home subdivision. East: Property to the east is zoned NRMU District and RD -5X District and is undeveloped rural property. South: Property to the south is zoned NR -4 District and is undeveloped rural property. West: Property to the west is zoned NRMU -12 District and NR -4 District and is undeveloped with exception to a gas well site. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The purpose of the Neighborhood Residential land uses are to preserve and protect existing neighborhoods and to ensure that any new development is compatible with existing land uses, patterns, and design standards. The surrounding land use context contains large undeveloped areas and rural homesteads which have been recently annexed to the city within the years 2010 and 2013 in anticipation of future development. To the north - northwest of the subject property is a residential mobile -home subdivision and to the far southeast, across Pecan Creek, are new single- family developments. The NR -4 zoning district is intended for single- family uses with a maximum density of four dwelling units per acre. In developments greater than two acres, there are no minimum lot sizes stipulated per the Denton Development Code (DDC). Attached Single - Family Dwellings, Accessory Dwelling Units, Daycares and Elementary Schools are permitted with a Specific Use Permit (SUP). Parks, open space, and religious institutions are permitted by right. Refer to the attached list of permitted uses in the NR -4 District for further detail. The approximately 60 acres south of the subject property is already zoned NR -4. The applicant is seeking to bring the NRMU District portion of the overall property in line with the adjacent NR -4 zoning to create a cohesive zoning district for the entire 80.0 acres to better plan for a single- family residential subdivision. The NRMU District does not fit with existing uses in the area and the city's growth patterns have not warranted such intense zoning at this time. A more appropriate zoning sequence would be to introduce low to moderate residential zoning on the subject property. COMPREHENSIVE PLAN: The Denton Plan 2030's Future Land Use Plan designates the subject property as "Rural Areas ". This category includes farms and ranches as the predominate use along with rural (very low density) residential and rural commercial uses. This land use may allow lots as one acre or half an acre under the gross density provision to allow for conservation development which clusters small lots while permanently protecting scenic rural open space. This land use may also include single - family homes on large lots which is suited for areas on the periphery of the city that complement a more suburban type development. However, the Future Land Use Element does not seek to impede developments in the outlying areas, it does support rational, staged developments in the fringe areas. The Land Use Element has been developed as a tool to implement the long - range vision of the community. The applicant's request to rezone to a NR -4 District does not conform to the designated Future Land Use category of Rural Areas with respect to the desired residential density. However, the Future Land Use Map does depict "Low Residential ", to the northwest of the subject property and to the far south across Pecan Creek. It is reasonable to consider the applicant's request as there is a need to introduce more residential development to this area of the city. The additional 60 acres to the south aids in the effort to plan for single- family City of Denton Page 2 of 5 Printed on 10/2/2015 File #: Z15 -0024, Version: 1 developments as it is already zoned as a NR -4 District, supporting low to medium residential density. Although the NR -4 District represents a medium range of density, the applicant intends to follow the Denton Plan's objectives for developing in rural areas by incorporating a "conservation development" to protect natural features on site and cluster single- family lots in planning the future residential subdivision Should the applicant's rezoning request be approved, a more complete transition point would be made on the eastern property line of the subject property in distinguishing between Low Residential and Rural Areas. The DDC provides evaluation criteria for such projects that may conflict with the Future Land Use Element of The Denton Plan. Pursuant to Section 35.3.3.B.3; an application for zoning change that does not conform to the Future Land Use Element shall be evaluated under the following factors to balance the interest in promoting the public health, safety, morals, or general welfare against the right to the use of the property in issue of. a) The existing land use pattern surrounding the property and the possible impact on existing or future development or uses that are in accordance with existing regulations; b) The possible creation of an isolated district unrelated to adjacent and nearby districts; c) The population density in order to facilitate the adequate provision of transportation, water, sewer, schools, parks, public convenience, and other public requirements; d) The cost to the City and other governmental entities in providing, improving, increasing or maintaining public utilities, schools, streets and other public safety measures; e) The possible impact on the environment, including but not limited to, drainage, soil erosion and sedimentation, flooding, air quality and water quantity; f) Whether there are substantial reasons why the property cannot be used in accordance with existing zoning or that proposed by the Future Land Use Map; and g) The action shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encouraging the most appropriate use of land throughout the City. CONSIDERATIONS: 1. The applicant is requesting a rezoning from a NRMU District to a NR -4 District for approximately 20.0 acres to develop the site in conjunction with an additional 60 acres to the south for a single- family residential subdivision. 2. Under the current NRMU District, single- family dwellings are prohibited as the district's intention is to encourage much higher residential density and or neighborhood- oriented commercial activity. The city's current growth patterns have not created a need for NRMU zoning in the area. 3. More intense uses permitted in the NR -4 District require approval of an SUP to ensure compatibility with the surrounding land use pattern. A schedule of uses for the NR -4 District is attached. It is reasonable to encourage low to moderate single family developments along East McKinney Street as an incremental response to promote future development activity in the area. 4. The applicant intends to follow the Denton Plan's Objective 2.14 for developing in rural areas by incorporating a "conservation development" subdivision design. The applicant is amenable to cluster single family lots with tighter arrangements to conserve and protect natural features located at the midpoint and the southern tip of the combined property interests. City of Denton Page 3 of 5 Printed on 10/2/2015 File #: Z15 -0024, Version: 1 5. Per Sections 35.3.3.A and 35.3.3.B.3 of the DDC, zoning changes that do not conform to the Future Land Use Element of the Denton Plan shall be evaluated and considered to balance the interest in promoting the public health, safety, morals, or general welfare against the right to the use of the property. Rezoning for single family development is consistent with the existing land use pattern surrounding the property and does not create an unrelated or isolated district. Upon future platting, the applicant will need to facilitate infrastructure improvements for providing city services and establish easements for areas designated as floodplain. The city's Mobility Plan indicates the future extension of Post Oak Boulevard from Pockrus Page Drive to East McKinney Street. Future residential phases anticipated with this rezoning will need to provide access to this thoroughfare. 6. Per Section 35.3.4.1) of the DDC, zoning changes may be approved if the proposed rezoning facilitates the adequate provision of transportation, water, sewer, schools, parks, and other public requirements and public convenience. The site will accommodate needed infrastructure improvements and conveniences necessary to support the number of lots anticipated with future platting. STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding zoning and is consistent with the overall goals and objectives of the Denton Plan 2030. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, four notices were sent to property owners within 200 feet of the subject property, seven 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 received one response in favor of the zoning request. The applicant also made their own outreach measures to the community by mailing a flyer to the same seven residents within 500 feet to gain feedback over the development proposal. No additional comments have been gained from this outreach effort. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PROJECT TIMELINE: Application Received: Pt Submittal Sent to DRC Members Comments Released to Applicant: DRC Meeting with Staff: Business Days under DRC Review: Business Day out to Applicant: Total Business Days: EXHIBITS: • Aerial Map • Zoning Map July 29, 2015 July 30, 2015 August 14, 2015 August 20, 2015 15 0 15 City of Denton Page 4 of 5 Printed on 10/2/2015 File #: Z15 -0024, Version: 1 Overall Zoning Change Map Future Land Use Map • NRMU Permitted Uses • NR -4 Permitted Uses • Public Notification Map • Public Hearing Response Letter • Applicant's Outreach Flyer Respectfully submitted: Munal Mauladad Deputy Director, Development Services Prepared by: Ross Culbertson Senior Planner City of Denton Page 5 of 5 Printed on 10/2/2015 Z15 -0024 - Pecan Park Aerial Map 300 600 COD Feet ETJ1 �r �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� DENTON I'lllu,ninhTag Depi tumroent -G IIS Date: 8/27/2015 ne arty or Uenton nas prepared maps Tor departmental use. I nese are not otria th ai maps or e Uty or Uenton and snouid not De used Tor legal, engineering or surveying purposes out Tamer Tor reference purposes. nese maps are e property or 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. Z15 -0024 Site Location / Zoning Map NR -2 ETJ k1l MARY ���' ��YYi �I� �� ���Gl��f✓�� +'�i'�j� r��D�Pu��fD ����71�w "�' ! �Illl` 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. ETJ Z15 -0024 Site Location / Zoning Map Overall Zoning Change �M 1 SITE ETJ NR -4 NRMU -12 W `r �s ,r^h^h Parcels IC -G JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ NR -6 PD F ;�r l uuuuuu�ullllll�llllllllllllllllllll (l DENTON NR -2 NRMU RD -5X ` Roads �1 I'lla intng Depa ttryt n t-GIS Date: 8/3/2015 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 -0024 - Pecan Park Future Land Use Map /Area Context ,fir r 11 / /i/ r1 / /rrrr r lia., r GI � 1 / 1 Jl � , „ ; r ;, / /iii ,,, rrrrrrr rrrrrrrrr rrrrrr 1 rrr,„ , ;..;rrrrr rrrrrrr, rr /r rrr r saaaaaaaaaaaaaaaaaaaaaaa rr„ rr,,, / / „k ,,,,� .. ... ,rr rrrrr,:.. ��� I II i IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII I i.... 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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. Neighborhood Residential Mixed Use (NRMU) Permitted Uses RESIDENTIAL: P Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled L(7) Livestock L(40) Attached Single - Family Dwellings L(4), SUP Multi - Family Dwellings SUP Group Homes SUP Fraternity or Sorority House SUP Dormitory COMMERCIAL: P Home Occupation, Hotels, Bed & Breakfast, Laundry Facility L(17) Retail Sales and Service, Professional Services and Offices L(11) Restaurant or Private Club L(14) Administrative or Research Facilities, Broadcasting or Production Studio L(38) Temporary Uses SUP Drive - through Facility, Quick Vehicle Servicing, Outdoor Recreation INDUSTRIAL: P Veterinary Clinics L(21) Bakeries L(27), SUP Gas Wells INSTITUTIONAL: P Community Service, Parks and Open Space, Churches, Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary School, Middle School, Elderly Housing, Medical Centers L(25) Basic Utilities L(14) Business/Trade School SUP High School, WECS (Free- standing Monopole Support Structure), WECS (Building Mounted) P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) — Multi - Family is permitted only: 1. With a Specific Use Permit (SUP), 2. As part of a Mixed -Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi - family use with one (1) year prior to the effective date of Ordinance No. 2005 -224; or, 5. If allowed by a City Council approved neighborhood (small area) plan. 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(11) — Limited to sit down only, and no drive up service permitted. Limited to no more than one hundred (100) seats and no more than four thousand (4,000) square feet of restaurant area. L(14) — Uses are limited to no more than ten thousand (10,000) square feet of gross floor area. L(17) — Uses that exceed twenty -five thousand (25,000) square feet of gross floor area per use require approval of a SUP. L(21) — Baking and Bottling areas not to exceed two thousand five - hundred (2,500) square feet. Sales on premise of products produced required in the same zone. 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 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. Z15 -0024 Site Location / Notification Map F-o B. I f k\ \ I 200ft Iuffr 500-ft Ilf;;uffir SITE p �` Parcels Jw.r- '- ;. �orY �� u���uuuuuu�����uiiuiiiiii��ll��llllllllllllllllllllllll��� ENTON Roads Ill 11lainifling Delpaiw onniciwnt - GI S - Date: 4/2015 he 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 f 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 or the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. ................................ SEP-20-2015 11:02 FROM:WELDON'S 9403871643 TO:3497707 P.1/1 In order for your opinion to be counted, please complete this form and mail to: Department of Devclopment Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or faxes e mail; —r01-51im U115aff 9-0 n —GO)c ii:FORIento -Il--co, M Fax: (940)349-7707 Comments: Signature: FTIMUM, Iii Project No: ZIS-0024 Please circle one: Phone Number: Email Address; Physical Add —1' L I For specific information regardiag the request, please refer to the City's websit e (see link below) for staff's analysis. The staff analysis will be posted on 10/2/15. Lww moW-q[ teat q.L /& verni, -11 �,�,V-nlitlwgs--VAJ-Cms �n- I Dcn U www.city0donton-com August 31, 2015 Address Address Address Address RE: Rezoning of approximately 20 on F.M. 426 (McKinney Street) Dear _Neighbor : You are receiving this letter because you are a property owner near a proposed re- zoning case on McKinney Road. Astra Development, LLC ( "Astra ") currently has approximately 80 acres under contract on the south side of East McKinney Street in the City of Denton (the "City "). Astra currently has a zoning case pending with the City to rezone a portion of the property that is currently zoned NRMU to new zoning of NR -4. Currently the site has NR -4 zoning on approximately 60 acres and NRMU zoning on the 20 acres nearest East McKinney Street. This rezoning would result in NR -4 zoning on the entire property. The zoning request is further detailed on the attached exhibit. NR -4 zoning is a residential zoning allowing for development of a maximum of 4 units per acre. NR -4 allows for much less density and a much narrower use than the existing NRMU zoning on the property. NRMU is the City's most broad mixed use zoning category allowing for a multitude of uses including retail, commercial, multifamily and more dense residential. Astra believes that this zoning request to place zoning for single family residential on this property is the most appropriate use and will best complement the surrounding area. This is not a City sponsored activity and is being conducted in advance of a future City sponsored Public Meeting required as part of the property zoning process. We would be happy to answer any questions you have regarding this zoning case. Please feel free to contact the City of Denton assigned Planner — Ross Culbertson at 940 - 340 -8357 or Project Engineer - Rod Zielke at 817 - 865 -5029 or Developer - Justin Bono with Astra Development at 214 - 662 -5530. We appreciate your consideration. Sincerely, Rod Zielke I Ib 1100 YR FLOOD PLAIN---� . ..... .. .. ... 478 (Mc#,mw� Sly"tj Z R-d 1 2;;0 200 400 6ie scAu H Par 100 YR FLOOD PLAIN 1 2 DRAFT Minutes DRAFT 3 Planning and Zoning Commission 4 October 7, 2015 5 6 After determining that a quorum was present, the Planning and Zoning Commission convened a 7 Work Session on Wednesday, October 7, 2015 at 5:00 p.m. in the City Council Work Session 8 Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items 9 were considered: 10 11 PRESENT: Chair Jim Strange. Commissioners: Amber Briggle, Larry Beck, Gerard 12 Hudspeth, Devin Taylor, Andrew Rozell and Frank Dudowicz. 13 14 ABSENT: None. 15 16 STAFF: Athena Green, Earl Escobar, Julie Wyatt, Mike Bell, Sophie Huemer, 17 Munal Mauladad, Jennifer DeCurtis, and Ross Culbertson. 18 19 WORK SESSION 20 21 Chair Jim Strange called the Work Session to order at 5:00 p.m. 22 1. Clarification of agenda items listed on the agenda for this meeting, and discussion of issues not briefed in the written backup materials. 23 24 Munal Mauladad, Deputy Director of Development Services, stated staff would present each of 25 the agenda items. 26 27 Ross Culbertson, Senior Planner, provided the request for Consent Agenda Item 3A. There were 28 no questions on the plat. 29 30 Sophie Huemer, Associate Planner, provided the request for Consent Agenda Item 3B. 31 Commissioner Beck questioned what the proposed use would be. Huemer stated a use would be 32 pediatric medical center and offices. Commissioner Beck questioned the gas well tanks at the 33 intersection of Bonnie Brae Street and Scripture Street. Darren Groth, Gas Well Administrator, 34 stated there are three (3) tanks at that site. He stated they are only water tanks. Commissioner Beck 35 acknowledged. Huemer stated the proposed plat meets the fire code and Denton Development 36 Code requirements. 37 38 Mauladad stated staff will come back to Consent Agenda Item 3C once Commissioner Briggle 39 arrives. 40 41 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3, on behalf of 42 Senior Planner Mike Bell. Commissioner Beck questioned the proposed use for the site. Wyatt 43 stated the applicant intends to develop an office and warehouse space. Commissioner Beck 44 questioned if it would be considered light industrial use. Wyatt stated she hasn't received that I information. She stated the applicant would have to meet the buffer requirements as well. 2 Mauladad stated a 30 foot buffer would be required, the applicant went before the Zoning Board 3 of Adjustment to receive a variance on the buffer, which was granted for a 20 foot buffer. 4 Commissioner Beck acknowledged. 5 6 Commissioner Hudspeth questioned the preliminary plat process and the proceeding steps 7 following the preliminary plat. Mauladad provided the steps for the preliminary and final plat 8 process. Jennifer DeCurtis, Deputy City Attorney, stated the preliminary plat process is to make 9 sure the developer is on the right track before moving forward with additional steps. Chair Strange 10 informed Commissioner Hudspeth of the Development Review Committee Pre - Application 11 process as well. 12 13 Commissioner Briggle arrived to the meeting. 14 15 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3E. She stated the 16 plat was approved by this Commission in the past, however, the applicant has decided to detain 17 onsite instead of underground. Commissioner Beck questioned the ingress and egress from the 18 subject site onto Teasley Lane. Earl Escobar, Engineering Development Review Manager, stated 19 the construction plans for the site indicate two entrances off of Teasley Lane. There will be one on 20 the common property line and one to the north of the property. Escobar stated both of the entrances 21 will have a dedicated right -turn lane to transition into the site. He stated the entrance to the north 22 will have a dedicated left -turn lane into the site. 23 24 Commissioner Beck questioned if there was any consideration to only make the entrances to the 25 site on Teasley Lane and the egress to the site on Hickory Creek Road. Escobar stated there was 26 concern with the north entrance to allow only a right -turn egress. Commissioner Beck 27 acknowledged. 28 29 Commissioner Dudowicz questioned if there are preliminary drawings for the Texas Department 30 of Transportation (TxDOT) for the entire Teasley Lane project. Escobar stated he is not familiar 31 with the entire project. Escobar stated the proposed designs for the subject site have been 32 coordinated with TxDOT. 33 34 Commissioner Dudowicz questioned expansion plans for Hickory Creek Road. Escobar stated 35 Sprouts Farmers Market would widen Hickory Creek Road with turn lanes at their site. 36 Commissioner Dudowicz questioned expansion plans for Ryan Road. Escobar stated Wal -Mart 37 would be required to make those updates. DeCurtis reminded the Commission to stay on topic. 38 Commissioner Dudowicz stated it has to do with the traffic for the area. 39 40 Commissioner Taylor questioned the expected date for the TxDOT widening of Teasley. Escobar 41 stated August 2017, with a three to five year completion time. 42 43 Chair Strange stated since Commissioner Briggle has arrived the Consent Agenda Item 3C can be 44 discussed. 45 2 I Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3C. Commissioner 2 Briggle questioned the circles on the plate. Wyatt stated those are the blocks, she stated the 3 applicant can add that wording to the plat to make it clear. Commissioner Briggle stated on other 4 plats, even if a gas well isn't on the site the gas well has been added to the plat in a greyed out 5 color to indicate the neighboring gas well, she stated she did see that on this plat. Wyatt stated 6 there is a gas park located within Robson Ranch adjacent to this property, she stated it wasn't 7 added to the plat. 8 9 Commissioner Briggle stated they are normally at least identified on the plat. Munal Mauladad, 10 Deputy Director of Development Services, stated this site is a Planned Development, therefore, 11 the items are dictated differently on the site. Commissioner Briggle acknowledged. 12 13 Commissioner Beck questioned the neighboring gas wells. Wyatt stated the plat meets the 14 requirements of the Robson Ranch Planned Development; the development has their own set of 15 requirements. Darren Groth, Gas Well Administrator, and Mauladad provided information the 16 Planned Development requirements. 17 18 There were no questions from the Commissioners for Agenda Items 4A, 5A, and 5B. 19 20 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 5C, on behalf of 21 Senior Planner, Mike Bell. Commissioner Beck questioned if Toyota of Denton and Honda of 22 Denton were leasing the site. Wyatt stated she is not aware of those business details. Commissioner 23 Beck questioned the purpose of needing to rezone the site. Wyatt stated the subject site is a Planned 24 Development which requires a set process to make any changes to the site. She stated the applicant 25 would rather rezone the site in order to make those changes. 26 27 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 51), on behalf of 28 Senior Planner, Mike Bell. She provided the Commission with a handout from one of the returned 29 responses for the public notices. Commissioner Dudowicz questioned if the TA Truck Stop parallel 30 to the subject site on I -35 would have to be addressed as well, Wyatt confirmed. 31 32 Commissioner Briggle questioned the neighboring residential site. Wyatt stated she wasn't aware 33 of a neighboring residential property. Commissioner Rozell stated there is a house next to Foster's 34 Western Wear. Commissioner Briggle questioned buffer requirements. Wyatt stated the subject 35 site would be considered an institutional use, the neighboring site is vehicle repair, which is a 36 commercial use; therefore, a buffer would not be required. 37 38 Commissioner Rozell stated he has concerns with traffic in the area. He stated traffic coming from 39 Krum, Texas, has to come down Farm to Market Road (FM) 1173 to intersect with I -35. The traffic 40 in the morning at this time gets backed up heavily. Wyatt stated in the future Barthold Road is 41 proposed to be improved and to intersect with North Elm Street, which should alleviate some of 42 the traffic on FM 1173. 43 44 Earl Escobar, Engineering Development Review Manager, stated during the plat process I -35 and 45 North Elm Street would be aligned with a signaled intersection. Commissioner Rozell stated that 46 will address a portion of the traffic. He stated he still has concerns with the underpass being a small 3 I space for the amount of semi - trailer trucks in the area. He questioned if the expansion would 2 address the underpass. Escobar stated not at this time, the proposed I -35 expansion project stops 3 at Highway 380 and I -35. He stated the subject site area would be until approximately 2030. 4 5 Ross Culbertson, Senior Planner, provided the request for Public Hearing Item 5E. He stated the 6 applicant sent their own property notification letter in addition to the one staff sends out. 7 Commissioner Taylor questioned if the proposed development allows space for the proposed 8 realignment of Post Oak Drive to University Drive. Culbertson stated the realignment doesn't 9 interfere with the subject site, it develops around the site. 10 11 Earl Escobar, Engineering Development Review Manager, stated when the development comes to 12 the area staff will ensure that the right -of -way is met with the proposed realignment. Commissioner 13 Taylor acknowledged. 14 15 Commissioner Taylor discussed setbacks and buffers to separate the subject site from the 16 neighboring City of Denton Landfill and Treatment Plant site. Munal Mauladad, Deputy Director 17 of Development Services, stated the City of Denton Landfill site has a Capital Improvement Plan 18 program, which would be related to the setbacks and buffer requirements. Commissioner Taylor 19 questioned if those would be during the planning process. Mauladad confirmed. 20 21 Commissioner Briggle stated this is the first project with a conservation development to come 22 before this Commission since the update of the Comprehensive Plan. She stated she likes to see 23 these types of developments. She questioned when this Commission would start seeing more 24 conservation developments. Culbertson stated the applicant initiated the development with staff's 25 support. He stated when staff reviews a project with an applicant they will work more on these 26 types of developments. 27 28 Commissioner Dudowicz stated he agrees with Commissioner Briggle's comment. Mauladad 29 stated the Denton Development Code (DDC) and the Comprehensive Plan do not communicate on 30 the same level. She stated staff is aware the elements of the Comprehensive Plan and critical. She 31 stated an overhaul of the DDC needs to take place as well. 32 33 Chair Strange adjourned the Work Session at 6:16 p.m. 34 35 REGULAR MEETING 36 37 The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, October 38 7, 2015 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 39 the following items were considered: 40 41 Chair Strange called the Regular Meeting to order at 6:39 p.m. 42 43 1. PLEDGE OF ALLEGIANCE 44 A. U. S. Flag 45 B. Texas Flag 46 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 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION MINUTES FOR: A. PZ15 -009 SEPTEMBER 16, 2015 Commissioner Devin Taylor motioned, Commissioner Amber Briggle seconded to approve the meeting minutes. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 3. CONSENT AGENDA: A. PP15 -0026 Consider a Preliminary Plat of Block A, Lots 7 & 8 of the Westpark Industrial Addition. The approximately 27.56 acre property is generally located on the northeast corner of Airport Road and South Western Boulevard within the J. Davis Survey, Abstract No. 326. (PP15 -0026, Westpark Industrial, Ross Culbertson) B. FP15 -0028 Consider a Final Plat of Lot 1 Block A, of the Cook Children's Rayzor Ranch Addition. The approximately 3.32 acre subject property is generally located at the north side of Scripture Street and 1300 feet east of Interstate Highway 35, within the B.B.B. & C.R.R. Survey, Abstract No. 192. (FP15 -0028, Cook Children's Rayzor Ranch Addition, Sophie Huemer) C. FP15 -0019 Consider a Final Plat of Robson Ranch, Unit 10 -2. The approximately 25 acre subject property is generally located 520 feet northwest of the corner of Michelle Way Street and Crestview Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (FP 15 -0019, Robson Ranch, Unit 10 -2, Julie Wyatt) D. PP15 -0019 Consider a Preliminary Plat of Lot 1, Block A of the Perfect Finish Landscaping Addition. The approximately 4.99 acre subject property is generally located on the north side of Fishtrap Road, approximately 500 feet east of Geesling Road. (PP15 -0019, Perfect Finish Landscaping, Mike Bell) E. FP15 -0024 Consider a Final Plat of the Sprouts Addition. The approximately 7.02 acre property is generally located on the northwest corner of Teasley Lane (FM 2181) and Hickory Creek Road. (FP15 -0024, Sprouts Addition, Mike Bell) Commissioner Amber Briggle motioned, Commissioner Frank Dudowicz seconded to approve the Consent Agenda. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye" Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 5 4. ITEMS FOR INDIVIDUAL CONSIDERATION A. PZ15 -010 Consider and appoint a member for the Planning and Zoning Commission Chair and Vice -Chair positions. 3 Commissioner Devin Taylor motioned, Commissioner Andrew Rozell seconded to ratify the 4 election of Jim Strange as Chair and Amber Briggle as Vice - Chair. Motion approved (7 -0). 5 Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", 6 Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard 7 Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 8 5. PUBLIC HEARINGS 9 A. FR15 -0012 Hold a public hearing and consider a Final Replat of Lots 1R, 2R, 3R, 5R, 6R, 8R, 9R, and IOR, Block A of the Rayzor Ranch Town Center, Phase I. The approximately 99.532 acre property is generally located at the southeast corner of University Drive (US 380) and Interstate Hi _ghway, 35 (I -35), within the B.B.B. & C.R.R. Survey35 (I -35), within the B.B.B. & C.R.R. Survey, Abstract 192. (FR15 -0012, Rayzor Ranch Town Center Phase 1, Sophie Huemer) 10 11 Chair Strange opened the Public Hearing. Sophie Huemer, Associate Planner, provided the 12 presentation for this request. There were no questions from the Commissioners. There was no one 13 to speak during the Public Hearing. Chair Strange closed the Public Hearing. 14 15 Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this 16 request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 17 "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 18 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 19 B. FR15 -0003 Hold a public hearing and consider a Final Replat of Block A, Lots 2R -1, 3 & 4 of the Mid States Realty Subdivision. The 5.13 acre property is _ generally located on the west side of Loop 288, aproximately 800 feet north of Spencer Road within the Mary L. Austin Survey, Abstract No. 4. (FR15 -0003, Mid States Realty Subdivision, Ross Culbertson) 20 21 Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the 22 presentation for this request. There were no questions from the Commissioners. 23 24 Greg Edwards, Greg Edwards Engineering Services, 1621 Amanda Court, Ponder, Texas. Edwards 25 stated he represents the owner. He would like to create two pad sites for future development. There 26 was no further discussion. There was no one else to speak, Chair Strange closed the Public Hearing. 27 28 Commissioner Devin Taylor motioned, Commissioner Larry Beck seconded to approve this 29 request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 30 "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 31 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 32 11 C. Z15 -0015 Hold a public hearing and consider making a recommendation to City Council re _ ag riling a rezoning g of approximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, approximately 2,100 feet northwest of Post Oak Drive. (Z15 -0015, Toyota of Denton, Mike Bell) 2 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 3 presentation for this request. She stated staff recommends approval of this request. There were no 4 questions for staff. There was no one to speak during the Public Hearing. Chair Strange closed the 5 Public Hearing. 6 7 Commissioner Frank Dudowicz motioned, Commissioner Andrew Rozell seconded to approve 8 this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber 9 Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner 10 Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell 11 "aye ". 12 D. Z15 -0025 Hold a public hearing and consider making a recommendation to City Council re _ ag riling a rezoning g of approximately 15.811 acres from a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located at the southwest corner of N I -35 and Barthold Road. (Z15 -0025, Love's Travel Stop, Mike Bell) 13 14 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 15 presentation for this request, on behalf of Senior Planner, Mike Bell. She stated staff recommends 16 approval of this request. The applicant is present. 17 18 Commissioner Rozell shared his concerns with the traffic in the area. He stated the traffic concerns 19 will only get worse with the proposed development. Rozell stated the I -35 underpass is already a 20 small intersection. Wyatt stated those concerns would normally be addressed during the platting 21 process. She stated a traffic analysis would be completed at that time as well. 22 23 Commissioner Rozell stated he would like to see Barthold Road and Farm to Market Road 1173 24 reviewed during the traffic analysis. Earl Escobar, Engineering Development Review Manager, 25 stated if this Commission has concerns with those areas the traffic analysis can address them during 26 the platting process as well. There was no further discussion. 27 28 The following individuals spoke during the Public Hearing: 29 30 Jeremey Reese, 4420 Jackson Road, Marianna, Florida. Reese stated he is the applicant 31 and is present for questions, he does not have a presentation. 32 33 Mike Ososanya, 4981 Barthold Road, Denton, Texas. Stated he has concerns with noise 34 and pollution in the area. He represents the property owner to the west of the subject site. 35 7 I Commissioner Dudowicz questioned Ososanya on the use of the site he represents. Ososanya 2 stated a Wingfoot Commercial Tire Systems. 3 4 Samuel Akinniyi, 1516 Vista Verde Street, Denton, Texas. Support of this request. 5 6 Commissioner Rozell stated the traffic issue needs to be addressed immediately. 7 8 Chair Strange read public response received from Joseph Agbo into the record. Agbo did not stated 9 if he was in favor or opposed to the request. There was no one else to speak Chair Strange closed 10 the Public Hearing. 11 12 Commissioner Hudspeth requested clarification from the applicant. Chair Strange opened the 13 Public Hearing for clarification. 14 15 Commissioner Hudspeth requested clarification from the applicant for the proposed overview of 16 the site. Jeremey Reese, applicant, stated there will potentially be two or three restaurants within 17 the Love's Travel Stop. He stated he isn't certain which ones those will be at this time. There will 18 be one of those restaurants with a drive -thru. The back of the site would contain the truck area and 19 diesel bays. There will also be a light tire maintenance on the site. 20 21 Commissioner Beck questioned if the business would be opened 24 hours a day seven (7) days a 22 week. Reese confirmed. 23 24 Commissioner Briggle questioned if a buffer is not required neighboring the church, then the 25 church would be required to install a buffer if they wanted one. Wyatt confirmed. 26 27 There was no further discussion. Chair Strange closed the Public Hearing. 28 29 Commissioner Frank Dudowicz motioned, Commissioner Gerard Hudspeth seconded to approve 30 this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber 31 Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner 32 Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell 33 "aye ". 34 E. Z15 -0024 Hold a public hearing and consider making a recommendation to City Council re _ ag riling a rezoning g of approximately 20.0 acres from a Neighborhood Residential Mixed Use (NRMU) District to a Neighborhood Residential 4 (NR -4) District. The subject property is _ generally located on the south side of East McKinney Street (FM 426), approximately 2,330 feet east of Orr Road. (Z15 -0024, Pecan Park, Ross Culbertson) 35 36 Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the 37 presentation for this request. He stated staff recommends approval of this request. Commissioner 38 Rozell questioned the expectation of rural future land use. Culbertson stated rural was designated 39 for larger lots within rural areas. Commissioner Rozell questioned if that was the expectation for 40 the Denton Plan 2030 updated. Culbertson confirmed. There were no further questions for staff. 41 E3 I Rod Zielke, ZPS Consulting Engineers, 1111 S. Main Street, Grapevine, Texas. Zielke stated he 2 doesn't have a presentation, he is available for questions. 3 4 Commissioner Briggle requested additional information from Zielke for this conservation 5 development plan request. Zielke stated this is the preliminary stage, he wanted to submit this stage 6 before they got into too much detail with the plan. The property has natural features, flood plain, 7 and heavily treed. Zielke stated the site is conducive to the conservation development. 8 Commissioner Briggle thanked Zielke for his work on this project. 9 10 Commissioner Beck questioned if the 20 acre development would be single- family residential. 11 Zielke stated the entire site would be 80 acres if the zoning for the 20 acres is approved. He stated 12 he would like to see it as a large tract of land. Commissioner Beck questioned if it would be single - 13 family residential. Zielke confirmed. 14 15 The following individual spoke during the Public Hearing: 16 17 Jeff Hardgrave, Atmos Energy, 5420 LBJ Freeway, Suite 1528, Dallas, Texas. Hardgrave 18 stated he wanted to make sure the applicant and Commission is aware that Atmos has a high 19 pressure pipeline underground neighboring the subject site. He stated he is not opposed to the 20 request, he just wanted it brought to the attention of this Commission. 21 22 Commissioner Taylor questioned if it is a gas well. Hardgrave stated it is a natural gas storage 23 well. There is gas drilling to the site, however, there is no fracking on the site, the process does not 24 require fracking. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Commissioner Dudowicz questioned how deep the pipeline is laid, Hardgrave stated approximately 36 -48 inches deep. There was no one else to speak, Chair Strange closed the Public Hearing. Commissioner Rozell stated he feels the rezoning is compatible with the surrounding area. He stated he does have concerns with the future land use. There was no further discussion. Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 6. CONCLUDING ITEMS Commissioner Briggle stated he is glad to see potential for conservation developments within the community. She stated she would like to see an overview of where this is headed in the future. Commissioner Taylor requested an agenda item to discuss the potential for a subcommittee of this Commission. p] I Commissioner Dudowicz questioned if conditions are placed on an item what does staff do to 2 ensure those conditions are met. Munal Mauladad, Deputy Director of Development Services, 3 stated there are various steps associated with the approval process and conditions. She stated once 4 a project is submitted for a permit those conditions have to be met during the permitting and 5 inspection process. She stated if there are items not being met she would like those brought to her 6 attention and she will research them. 7 8 Commissioner Hudspeth stated he would like to see this Commission receive information earlier 9 in the process, if the City is aware of information to provide before it comes to this Commission 10 for review. Mauladad stated some of the items that come to the City for development are Building 11 Inspection related and others are Planning Division related. She stated she will meet with staff to 12 see if there is a process to gather information from both departments to provide to this Commission. 13 14 Chair Strange stated he would like to see an upcoming Work Session Item to discuss definitions, 15 street paving, developer responsibilities, and other requirements for traffic and street 16 improvements. Mauladad stated staff will bring something back to this Commission to address 17 those items. 18 19 Chair Strange thanked staff for providing this Commission with an updated matrix, he stated it has 20 been helpful. There was no further discussion, Chair Strange adjourned the Regular Meeting at 21 7:45 p.m. 22 23 10 SALegal \Our Documents \Ordinances \15\7_.15 -0024 Ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT AND USE CLASSIFICATION TO A NEIGHBORIOOD RESIDENTIAL 4 (NR -4) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 20.0 ACRES OF LAND GENERALLY LOCATED ON THE SOUTH SIDE OF EAST MCKINNEY STREET (FM 426), APPROXIMATELY 2,330 FEET EAST OF ORR ROAD, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0024) WHEREAS, Rodney Zielke of ZPS Consulting Engineers has applied for a zoning change on approximately 20.0 acres of land legally described in Exhibit "A ", attached hereto and incorporated herein by reference (hereinafter, the "Property ") from a NRMU zoning district and use classification to a NR -4 zoning district and use classification; and WHEREAS, on October 7, 2015, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (7 -0) of the change in zoning district and use classification; and WHEREAS, on November 17, 2015, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The zoning district and use classification for the Property is hereby changed from NRMU to NR -4. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Exhibit A Legal Description BEING 20.000 acres of land located in the Gideon Walker Survey, Abstract No. 1330, Denton County, Texas, being a portion of the tract of land described in the deed to Tarrant Acquisition, LTD., a Texas limited partnership, recorded in County Clerks, Document No. 2006 - 79091, Deed Records, Denton County, Texas. Said 20.00 acres of land being more particularly described as follows: BEGINNING at the Northeast corner of said Tarrant Acquisition tract; THENCE SO °41'23 "W, a distance of 498.86 feet along the East line of said Tarrant Acquisition tract to a point; THENCE N88 018'37 "W, a distance of 911.74 feet to a point in the West line of said Tarrant Acquisition tract; THENCE NO 1026'25"E, a distance of 1,447.95 feet along said West line to the Northwest corner of said Tarrant Acquisition tract; THENCE along the Northerly line of said Tarrant Acquisition tract as follows: 1. S41'00'3 I "E, a distance of 1,061.85 feet to a point; 2. Southeasterly, 260.71 feet along a non tangent curve to the left, having a radius of 1,087.00 feet, a central angle of 13 °44'32" and a chord bearing S47 °52'31 "E, 260.09 feet to the POINT OF BEGINNING, containing 20.000 acres of land. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -1115, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales Jr. DATE: November 17, 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 Bowling Green Park for the purpose of installing and maintaining a detention pond outfall for the Fireside Development Project; providing for a notice by the City of Denton, Texas, of non -park use for installation and maintenance of a detention pond outfall and reservation of drainage easement in the event of sale of park; and providing an effective date. The Parks, Recreation and Beautification Board recommends approval (5 -0). BACKGROUND Fireside Development is a gated, 103 unit, Home Owners Association maintained, adult development targeted for senior citizens age 55 and above. In order for the on -site detention pond to outflow, this development will need to secure a drainage easement through the undeveloped eastern edge of Bowling Green Park. The developer has worked with the department at great lengths to minimize the impact to the forested edge of the park. In place of a 50- foot -wide standard drainage easement that would have compromised the trees and vegetation in this park, the developer proposed a narrower easement that is angled to avoid a reduction in the vista of the treed canopy from the neighboring residences. The majority of the vista interruption will be orientated toward Vanderbilt Street. Additionally, the developer has amended the previous design submittal regarding the water supply for this development. The original plans called for a second easement bisecting Bowling Green Park and further impacting the forested eastern edge of the property in order to supply one of the water connections to this development. In order to alleviate the need for a second easement through the park, the developer is extending the water main running parallel to Windsor Street in an existing nine foot easement. This added expense, on behalf of the developer, will directly benefit the tree canopy and aesthetic value of the park. 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, as a park, resulting fi^oin the use or taking. City of Denton Page 1 of 2 Printed on 11/12/2015 File #: ID 15 -1115, Version: 1 (b) A finding inay be made only after notice and a hearing as required by this chapter. OPTIONS Adopt the ordinance and grant the easement. Deny the ordinance. 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 0.08 acre parcel of property as a Drainage 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 December 2015 to March of 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Park, Recreation, and Beautification Board reviewed and recommended approval on September 14, 2015, by a vote of (5 -0). FISCAL INFORMATION The dedication of this Drainage Easement is necessary to place a subsurface outflow from the detention pond that will be required for the development of the tract of land in the southwest corner of Windsor and Hinkle. The developer has offered the department a sum of $5,000 for this easement. Additionally, the developer has offered to pay all Park Dedication and Park Development Fees in advance so that a trail connecting the portion of sidewalk that will be constructed along Windsor as part of the development can continue toward North Lakes Recreation Center. EXHIBITS Exhibit 1- Excerpt of Parks, Recreation and Beautification Board Minutes of September 14, 2015 Exhibit 2- Legal Description and Survey Exhibit 3- Chapter 26 Legal Ad Notification Exhibit 4- Ordinance Bowling Green Park - Fireside Development Project - Chapter 26 Ordinance Respectfully submitted: Emerson Vorel Jr., Director Parks and Recreation City of Denton Page 2 of 2 Printed on 11/12/2015 Exhibit 1 EXCERPT from DRAFT MINUTES PARKS, RECREATION AND BEAUTIFICATION BOARD September 14, 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, September 14, 2015, at 6:00 p.m. in the Denton Civic Center, 321 E. McKinney Street, Denton, Texas. Members Present: Russ Stukel, Janet Shelton, Alex Lieban, Paul Leslie, and Gary Barber; outgoing (non- voting) member Vicki Byrd Members Absent: Maria Renner, Tara (Mills) Hartford Staff present: Emerson Vorel, John Schubert, Jim Mays, Janie McLeod OPEN MEETING ACTION ITEM: Consider making a recommendation to the Denton City Council regarding the following item: Chapter 26: Proposed 16' Drainage Easement at Bowling Green Park Per Mays: The Fireside Development is a gated, 103 unit, HOA- maintained, adult - development targeted to senior citizens age 55 and above. To ensure detention pond outflow on this site, the development requires a drainage easement through the undeveloped eastern edge of Bowling Green Park. In place of a 50- foot -wide standard drainage easement that compromises trees and vegetation in this park, the developer opted for a narrower easement that is angled so as not to harm the tree canopy. The original plans called for a second easement which bisected Bowling Green Park and impacted the forested eastern edge of the property to supply a water connection. Revised plans route the water main parallel with Windsor Street along a pre- existing 9- foot - easement. This developer - incurred- expense benefits and preserves the tree canopy and aesthetic value of the park. Mays fielded a variety of clarity -based questions and Member Leslie made a motion to approve recommendation to City Council; Member Shelton seconded; and the motion passed 5 -0. There being no further deliberation on this matter, the Board advanced to the next Item. Exhibit 2 16'DRAINAGE EASEMENT Being all that certain lot, tract or parcel of land situated in the Robert Beaumont Survey, Abstract Number31 in the City ufDenton, Denton County, Texas and being a part of a 8.398 acre tract of land described in a deed as Tract ^U|^todheCbyo[Dwntommm recorded in Volume 700, page 485 of the Deed Records, Denton County, Texas; the subject tract being more particularly described as follows; COMMENCING ataI"iron rod found in the East Right of Way of Bowling Green Street and being the Northwest corner ofo1.524 acre tract of land described in a deed as Tract "I" to the City of Denton as recorded in Volume 3418, Page 118 of the Real Property Records, Denton County, Texas and being the Southwest corner of said 8.398 acre tract; Thence South 89 degrees 00 minutes 10 seconds East with the common line thereof a distance of 342.33 feet to a point in the the North line cf said 1.524 acre tract the Southeast corner of said 8308 acre tract and being the Southwest corner n[ Lot 1. Block 1 Gateway Addition, an addition to the City of Denton, Denton County, Texas as recorded in Cabinet R, Page 238 of the Plat Records, Denton County, Texas and being at the beginning of a curve to the left having a radius of 2293,17 feet and a chord bearing and distance of North 09 degrees 51 minutes 13 seconds East, 264.13 feet; Thence with the common line thereof along said curve an arc distance of 264.49 feet to a i"iron rod found for the Northeast corner of said lot 1 and the Southwest comer ofo30.703Q acre tract of land described ina deed ho Peter E.PuUe. Trustee of the Survivor's Trust, Utd., as recorded in County Clerk's File Number 2015-8782 of the Real Property Records, Denton County, Texas and being at the beginning ofacurve to the left having a radius of 2293.17 feet and a chord bearing and distance of North 05 degrees 45 minutes 51 seconds East, 62.86 feet; Thence along said curve an arc distance of 62.86 feet to the POINT OF BEGINNING and being in the East line of said G.308acre tract and the West line of a 30.7039 acre tract and being at the beginning of a curve to the left having a radius of 117.00 feet and a chord bearing and distance of South 77 degrees 56 minutes 05 seconds West, 54.81 feet; Thence along said curve an arc distance of5G.32 feet toopoint; Thence South 64 degrees 23 minutes 22 seconds West a distance of 168.19 feet to a point; Thence North 11 degrees 10 minutes 50 seconds West m distance of10.52 feet haopoint; Thence North 64 degrees 23 minutes 22 seconds East a distance of 164.07 feet to a point at the beginning of a curve to the right having a radius of 133.00 feet and a chord bearing and distance of North 78 degrees 08 minutes 00 seconds East, 63.20 feet; Thence along said curve an arc distance of 63.81 feet to a point in the West line of said 30.7039 acre tract and the East line of said 8.398 acre tract and being at the beginning of a curve to the right having a radius of 2293.17 feet and a chord bearing and distance of South O4 degrees 4U minutes 4O seconds West, 18.nQfeet; Thence along the common line thereof an arc distance of 16.09 feet to the PLACE OF BEGINNING and enclosing 0.08 of an acre of land more orless. ST ������ K,AIZ SURVEYING 1720 WESTMINSTER DENTON, TX 762o5 JOB NUMBER: 150407- EASE DATE� 8-25-2015 KENNETH A. ZOLLINGER Exhibit 2 K Z SURVEYING N.H. MEISENHAMER SURVEY, JOB NUMBER: 150407-EASE DRAWN BY: D.B.R. ABSTRACT # 810, R.P.L.S, KENNETH A. ZOLLINGER .q 1/2" IRF -- r DENTON COUNTY, TEXAS L2 POINT NORTH UNIVERSITY 1/2" IRF R.P.R.D.C.T. PLACE ADDITION, S 86 °52'31" W 391.89' FOURTH SECTION IN 00'59'37" E 16.04' LOT 7, BLOCK XXI I S 64'23'22" W 168.19' VOL. 5 PG 50 ' IN 11'10'50" W 16.52' ,C.T. P.R.6 N 64'23'22" E 164.07' 1/2" IRF A TRACT OF LAND 342.33' K Z SURVEYING 1720 WESTMINSTER DENTON, TX 76205 (940)382-3446 JOB NUMBER: 150407-EASE DRAWN BY: D.B.R. DATE: 8.252015 R.P.L.S, KENNETH A. ZOLLINGER DESCRIBED IN A DEED AS A TRACT OF LAND 01 TRACT "III" TO DESCRIBED IN A DEED TO THE CITY OF DENTON PETER E. PULIS, TRUSTEE OF VOL. 700, PG. 485 THE SURVIVOR'S TRUST, UTD, D.R,D.C.T. CCF# 2015-8782 1/2" IRF R.P.R.D.C.T. F- ui w CC U) Z W w z 0 co ROBERT BEAUMONT SURVEY, ABSTRACT # 31 DENTON COUNTY, TEXAS 0.08 ACRE 16' DRAINAGE EASEMENT I CJ LINE BEARING DISTANCE Ll N 21 °13"26" E 145.14' L2 S 88'56'23" E 36513' L3 N 8652'31'* E 390.82' L4 S 86 °52'31" W 391.89' L5 IN 00'59'37" E 16.04' L6 S 64'23'22" W 168.19' L7 IN 11'10'50" W 16.52' L8 N 64'23'22" E 164.07' L9 S 89'00'10" E 342.33' L10 N 00'03'46" W 59.46' Lll IN 00'59'37" E 594.75, L12 S 00-59'37" W 9916' 1/2" IRF L9 POINT A TRACT OF LAND DESCRIBED IN A DEED AS TRACT "I" TO THE CITY OF DENTON VOL. 3418, PG. 118, R.P.R.D.C.T. I" - 120' CURVE A TRACT OF LAND RADIUS DELTA ANGLE DESCRIBED IN DEED AS / GATEWAY ADDITION TANGENT TRACT "I I]" TO oo LOT 1, BLOCK 1 POINT O THE CITY OF DENTON CAB, R, PG. 238 r� VOL. 700, PG. 485 P.R.D.C. T, C) D.R.D.C.T. 7'35'37" 1/2" IRFO 303.70' 152.18' C3 16.00' 2293.17' 0*23'59" S 02'48'03* E 1/2" IRF L9 POINT A TRACT OF LAND DESCRIBED IN A DEED AS TRACT "I" TO THE CITY OF DENTON VOL. 3418, PG. 118, R.P.R.D.C.T. I" - 120' CURVE ARC LENGTH RADIUS DELTA ANGLE CHORD BEARING CHORD LENGTH TANGENT Cl 122.86' 100.00, 70'23'39" S 34'20'38"E 115.28" 70.53' C2 30192' 2293.17' 7'35'37" S 06'47'51"E 303.70' 152.18' C3 16.00' 2293.17' 0*23'59" S 02'48'03* E 16.00, C4 607,27' 2293.17' 7'10'02" S 03'00'29" E 605.43' 143.61' C5 16.09- 2293.17' 0'24'08" S 04'46'40"W 16.09' 8.05, 6 62.86' 2293.17- 1 1-34-14" 1 N 05-45-51- E 1 62.86' 31.43' 1 C7 59.85, 3755.89' 0'54'47'* N 00'33'09"E 59.85' 29,93' 264.49- 229317' 6'36'30" N 09'51'13'E 264.34' 132.39' C9 55.32' 117.00' 27'05'25" S 77'56'05" W 54.81' 2819' clo 63.81' 133.00' 27'29'15" N 78'08'00" E 63.20' 32.53' Exhibit 3 Texas Parks and Wildlife Chapter 26 Notification for A 16` Drainage Easement at Bowling Green Park Adjacent to Fireside Development 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 a 16' Drainage Easement, for the purpose of the installation and maintenance of a detention pond outfall along the eastern boundary of the park property at Bowling Green Park, for a length of 218 feet, enclosing an area of 3,485 square feet or 0.08 acres. Denton City Council will hold a public hearing to consider this potential transaction on Tuesday, Nov 17, 2015, at 6:30 p.m. in the City Hall Council Chamber located at 215 E. McKinney St., Denton, Texas. Please note the date change from Nov 3 to Nov 17. 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 4 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 BOWLING GREEN PARK FOR THE PURPOSE OF INSTALLING AND MAINTAINING A DETENTION POND OUTFALL FOR THE FIRESIDE DEVELOPMENT PROJECT; PROVIDING FOR A NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR INSTALLATION AND MAINTENANCE OF A DETENTION POND OUTFALL AND RESERVATION OF DRAINAGE EASEMENT IN THE EVENT OF SALE OF PARK; AND PROVIDING AN EFFECTIVE DATE. (Parks, Recreation and Beautification Board recommend approval with a vote of 5- 0.) 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 0.08 acre in the southeastern portion of Bowling Green Park ( "Park ") generally located east of the 2200 block of Bowling Green St. for the installation and maintenance of a detention pond outfall for the Fireside Development Project ( "Project "); and WHEREAS, there are no feasible and prudent alternatives available for the location and installation and maintenance of a detention pond outfall for the Project; and WHEREAS, the City provided notice in the Denton Record - Chronicle on October 16, 2015 October 23, 2015, October 30, 2015, and November 6, 2015 of a Public Hearing to be held on November 17, 2015 in the Council Chambers to consider the alternatives to the non -park use of the Park for the installation and maintenance of a detention pond outfall; and WHEREAS, the City Council on November 17, 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 detention pond outfall; 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 detention pond outfall includes all reasonable planning to minimize harm to the Park as a result of the Project; NOW, THEREFORE, Exhibit 4 THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The installation and maintenance of a detention pond outfall in the southeastern portion of Bowling Green Park ( "Park ") generally located east of the 2200 block of Bowling Green St. for the Fireside Development Project ( "Project ") shall be constructed and maintained 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 detention pond outfall shall be constructed in a manner so that the Park may still be used for, to the extent possible with the presence of the detention pond outfall, 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 detention pond outfall 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. The City Manager, or his designee, after approval by the City Attorney, shall execute, and direct to be filed in the Real Property Records of Denton County, Texas, the "NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF DETENTION POND OUTFALL AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK" which is attached as Exhibit "2" with said Notice including the appropriate ordinance number and exhibits after the passage and approval of this ordinance. SECTION 5. The rights and benefits set forth in this ordinance may not be assigned without the express written consent of the City. SECTION 6. The findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of November, 2015. CHRIS WATTS, MAYOR Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY 0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: t z Llle k-1-01— 16'DRAINAGE EASEMENT Being all that certain lot, tract mparcel of land situated in the Robert Beaumont Survey, Abstract Number 31in the City of Denton, Denton County, Texas and being a part ofa8.398 acre tract ofland described ino deed am Tract lU~totheCKycfDenbmam recorded in Volume 7OD^ page 485of the Deed Records, Denton County, Texas; the subject tract being more particularly described as follows; COMMENCING ataI" iron rod found in the East Right of Way o/ Bowling Green Street and being �eNo�hwe�o�nerofo1.�4 oo�kactcf�nddeschbedin a deed esTr�t^|^io the QtyofDen�naer�or recorded -8.Page118cfdheRea Property Records, Denton County, Texas and being the Southwest corner of said 8.398 acre tract; Thence South 89 degrees 00 minutes 10 seconds East with the common line thereof a distance of 342.33 feet to point in the the North line o[ said 1.524 acre tract the Southeast corner of said 8.3QOacre tract and being the Southwest corner o4 Lot 1^ Block 1 Gateway Addition, an addition to the City of Denton, Denton County, Texas as recorded in Cabinet R, Page 238 of the Plat Records, Denton County, Texas and being at the beginning of a curve to the left having a radius of 2293,17 feet and a chord bearing and distance of North 09 degrees 51 minutes 13 seconds East, 2,34.13 feet; Thence with the common line thereof along said curve an arc distance of 264.49 feet to a 85" iron rod found for the Northeast comer cf said lot 1 and the Southwest corner ofm30.7O3B acre tract of land described ino deed m Peter E.PuWx. Trustee of the Survivor's Trust, Utd., as recorded in County Clerk's File Number 2015-8782 of the Real Property Records, Denton County, Texas and being at the beginning of a curve to the left having a radius of 2293.17 feet and a chord bearing and distance of North 05 degrees 45 minutes 51 seconds East, 62.BGfeet; Thence along said curve an arc distance of82,OO feet (m the POINT OF BEGINNING and being in the East line of said 8.%Q8 acre tract and the West line of a 30.7039 acre tract and being at the beginning of a curve to the left having a radius of117.O0 feet and chord bearing and distance of South 77 degrees 5B minutes O5 seconds West, 54,81feet; Thence along said curve en arc distance of55.32 feet toapoint: Thence South 64 degrees 23 minutes 22 seconds West a distance of 168.19 feet to a point; Thence North 11 degrees 10 minutes 50 seconds West a distance of 16.52 feet to a point; Thence North 64 degrees 23 minutes 22 seconds East a distance of 164.'07 feet to a point at the beginning of a curve to the right having a radius of 133.00 feet and a chord bearing and distance of North 78 degrees 08 minutes 00 seconds East, 63.20 feet; Thence along said curve an arc distance ofG3,81 feet hoa point in the West line wy said 3O7O3Q acre tract and the East line ofsaid 8.398 acre tract and being at the beginning of a curve to the right having a radius of 2293.17 feet and a chord bearing and distance of South D4 degrees 4S minutes 40 seconds West, 1G.OQfeet; Thence along the common line thereof an arc distance of 16.09 feet to the PLACE OF BEGINNING and enclosing 0.08 of an acre of land more orless. OF KENNETH A;ZOWNGE� PAGE 1 OF 2 1720 WESTMINSTER DENTON, TX 76205 KA Z JOS NUMBER: 150407. EASE � DATF-: 8.25-2015 DESCRIBED |wA DEED xS TRACT ~m^To THE CITY npDewr0N voL�70D. PG. 485 D.R.O,CT. | N.H. ME ISENHAMER SURVEY. ABSTRACT 4 810, / 1720 WESTMINSTER 1/2" IRF DENTON COUNTY, TEXAS L2 TANGENT x TRACT OPLAND / DENTON, TX 76205 (940)382-3446 un/ LnT1 BLVCx1 TRACT ^m^TO u ' Lu '~^~ Lu 7'35'37"__ S 06147'51"E woL�7o0.p(�*us �R.D.C.T. 0� " | �z 1/2" . 0.08 ACRE 0 ( 18'DnmN4GsexSEmEwr `, ` Go | N 00003'46" W PLACE ADDITION, 1x�|Rp - --- ---°�-- --- --- --- L12 S0015911 DATE: &2!�2015 FOURTH SECTION Su�VEYING KENNETH A. ZOLLINGFR LOT 7, BLOCK XXII VOL. 5 PG 50 1/2" tRF A TRACT OF LAND DESCRIBED |wA DEED xS TRACT ~m^To THE CITY npDewr0N voL�70D. PG. 485 D.R.O,CT. | ROBERT aeAumOwTSURVEY, / ABSTRACT #o1 Lu oswTOw COUNTY, TEXAS TANGENT x TRACT OPLAND / GATEWAY ADDITION ossCmeeo|wx DEED x8 un/ LnT1 BLVCx1 TRACT ^m^TO u ' Lu '~^~ Lu 7'35'37"__ S 06147'51"E woL�7o0.p(�*us �R.D.C.T. 0� " | �z 1/2" . 0.08 ACRE 0 ( 18'DnmN4GsexSEmEwr `, ` Go | N 00003'46" W 59,46, 1x�|Rp \ * TRACT OfLAND DESCRIBED mA DEED T0 PETER s.pUL/S. TRUSTEE DF THE SURVIVOR'S TRUST, UTD. \ CCFwon1o'87oo LINE BEARING DISTANCE DELTA ANGLE | POINT / CHORD LENGTH TANGENT x TRACT OPLAND / GATEWAY ADDITION ossCmeeo|wx DEED x8 un/ LnT1 BLVCx1 TRACT ^m^TO u ' C2 '~^~ ��B P238 TnEC|TYOFoEmTDw � R ' (� 7'35'37"__ S 06147'51"E woL�7o0.p(�*us �R.D.C.T. " Dr n.o.C. � / �z 1/2" . n 60 |20 L10 N 00003'46" W 59,46, 1x�|Rp - --- ---°�-- --- --- --- L12 S0015911 99.16' :rINIA CURVE POINT 5/88 — --- --- / --- --- DELTA ANGLE | POINT / CHORD LENGTH TANGENT x TRACT OPLAND / GATEWAY ADDITION ossCmeeo|wx DEED x8 un/ LnT1 BLVCx1 TRACT ^m^TO u ' C2 '~^~ ��B P238 TnEC|TYOFoEmTDw � R ' (� 7'35'37"__ S 06147'51"E woL�7o0.p(�*us �R.D.C.T. " Dr n.o.C. � / �z 1/2" . n 60 |20 pPoc L9 mr 1x�|Rp - --- ---°�-- --- --- --- | A TRACT Or LAND DESCRIBED |wx DEED x5 TRACT l~To CURVE ARCLENGTH R IUS DELTA ANGLE CHORD BEARING CHORD LENGTH TANGENT C2 30192' 2293.17' 7'35'37"__ S 06147'51"E 30330' 152AF Exhibit 4 EXHIBIT "2" TO ORDINANCE 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 OR INSTALLATION AND MAINTENANCE OF DETENTION PO OUTFALL AND RESERVATION OF EASEMENT IN EVENT OF SALE OF PARK 1. On November 17, 2015, the City Council of the City of Dent , a Texas home rule municipal corporation ( "City"), passed Ordinance No. 2015 - e (See "Exhibit "A ") which allows the City, in accordance with the requirements o a 26 of the Texas Parks and Wildlife Code, the permanent and perpetual use in, alon Al, under, over, and across a southeastern portion of Bowling Green Park ( "Park "), 10 of the 2200 block of Bowling Green St., Denton, Denton County, Texas, for the rpose of installing, constructing, repairing, maintaining, altering, replacing, reloc wilding, removing, and operating a detention pond outfall, and all necessary and ilities and appurtenances. The specific location for the area of the Park used for the de t pond outfall is more particularly described and visually depicted in Exhibit "B ". TIAPapk i more particularly described in Exhibit "C." Exhibits "A," "B," and "C" are attache h document and made a part of the same. 2. Reservation of Easement iii t ent of Sale of Park In the event the City Set ark, which is described in Exhibit "C," the City reserves a permanent and perpetual easement for the purpose of installing, constructing, repairing, maintaining, altering, lac , relocating, rebuilding, removing, and operating a detention pond outfall, and all nec s d related facilities and appurtenances, in, along, upon, under, over, and across the land d in Exhibit "B" together with the right of ingress and egress as necessary for such pu . es. addition to the reservation of the permanent easement, a 20 -foot wide temporary o s ce easement is reserved adjacent to and outside the perimeter of the permanent easeme cribed in Exhibits "B ". This easement shall run with the land, is irrevocable, and is fold it of the City and the City's successors and assigns. the day of , 2015. PAGE 1 OF 2 - NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF DETENTION POND OUTFALL AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK Exhibit 4 CITY OF DENTON, TEXAS By: 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, a Texas homer ipal corporation, known to me to be the person whose name is subscribed to t ing instrument and acknowledged to me that the same was the act of the said City f n, Texas, a municipal corporation, that he was duly authorized to perform the same ity Council of the City of Denton and that he executed the same as the act of said Cit purposes and consideration therein expressed, and in the capacity therein stated. N ublic, State of Texas Approved as to legal form: Anita Burgess, City Attorney By: Nlr Afie recording, return to: Paul Williamson, Real Estate & Capital Support Manager City of Denton 901 -A Texas St. Second Floor Denton, Texas 76209 PAGE 2 OF 2 - NOTICE BY THE CITY OF DENTON, TEXAS OF NON -PARK USE FOR THE INSTALLATION AND MAINTENANCE OF DETENTION POND OUTFALL AND RESERVATION OF EASEMENT IN THE EVENT OF SALE OF PARK City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15- 0025a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: November 17, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance regarding a rezoning of approximately 15.811 acres from of a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located on the southwest corner of N I -35 and Barthold Road. The Planning and Zoning Commission recommends approval of the request (7 -0). BACKGROUND The subject property was originally developed as a truck stop, truck and RV wash, warehouse, and truck storage. In 2008, the convenience store associated with the truck stop was damaged by fire and the property is now used primarily for truck storage. The applicant, as the new owner of the property, intends to completely redevelop the site for a Love's Travel Stop and restaurants. Uses will include a convenience store, gasoline sales, restaurants, truck scales, and truck repair. As truck repair is not a permitted use within the current RCC - N zoning district, the applicant originally requested to the rezone the property to Regional Center Commercial Downtown (RCC -D) to permit all proposed uses. During review of the request, staff recommended the applicant consider an EC -C district. EC -C permits all proposed uses in addition to being consistent with the Future Land Use Plan in Denton Plan 2030. The applicant agreed to the change and is now requesting a rezoning to EC -C. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of this request (7 -0). The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City of Denton Page 1 of 2 Printed on 11/12/2015 File #: Z15- 0025a, Version: 1 On October 7, 2015, the Planning and Zoning Commission recommended [approval/denial] of the rezoning request (7 -0). EXHIBITS 1. Staff Analysis 2. Aerial Map 3. Zoning Map 4. Future Land Use Map 5. RCC -N Permitted Uses 6. EC -C Permitted Uses 7. Applicant Narrative 8. Public Notification Map and Responses 9. October 7, 2015 Planning & Zoning Commission Meeting Minutes 10. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Mike Bell Senior Planner City of Denton Page 2 of 2 Printed on 11/12/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: Z15 -0025, Version: 1 Planning Report Z15- 0025 /Love's Travel Stop City Council District 3 Planning & Zoning Commission October 7, 2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of approximately 15.811 acres from a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located at the southwest corner of I -35 and Barthold Road. (Z15 -0025, Love's Travel Stop, Mike Bell) OWNER: Love's Travel Stop & Country Stores APPLICANT: William Gleason, Love's Travel Stops & Country Stores BACKGROUND: The subject property was originally developed as a truck stop, truck and RV wash, warehouse, and truck storage. In 2008, the convenience store associated with the truck stop was damaged by fire and the property is now used primarily for truck storage. The applicant, as the new owner of the property, intends to completely redevelop the site for a Love's Travel Stop and restaurants. Uses will include a convenience store, gasoline sales, restaurants, truck scales, and truck repair. As truck repair is not a permitted use within the current RCC - N zoning district, the applicant originally requested to the rezone the property to Regional Center Commercial Downtown (RCC -D) to permit all proposed uses. During review of the request, staff recommended the applicant consider an EC -C district. EC -C permits all proposed uses in addition to being consistent with the Future Land Use Plan in Denton Plan 2030. The applicant agreed to the change and is now requesting a rezoning to EC -C. SITE DATA: The subject property includes approximately 15.8 acres of vacant commercial property. The old convenience store and gas pumps have been demolished but the warehouse remains. The site is predominantly covered with concrete pavement that was used for parking and shipping truck storage. The applicant intends to demolish all existing structures and pavement. The site is bound by the N I -35 service road on the east and Barthold Road on the north. The I -35 overpass over North Elm Street (US 77) is also located to the east of the property. Per the City of Denton Mobility Plan, Barthold Road is classified as a Secondary Major Arterial (110 -ft. right -of -way) and is currently owned and maintained by the City of Denton. Approximately 500 feet south of the subject property is FM 1173, which TxDOT plans to realign with the overpass of US 77 on the east side of N I -35. Once the realignment occurs, City of Denton Page 1 of 4 Printed on 10/2/2015 File #: Z15 -0025, Version: 1 Barthold Road will become a TxDOT owned and maintained right -of -way. USE OF PROPERTY UNDER CURRENT ZONING: The existing RCC -N district is the second most intense zoning district within the Regional Mixed Use future land use designation. It is intended to promote mixed use development with an urban character and businesses with a regional customer base. Moderate to high density residential uses with a maximum density of 80 units per acre are permitted including townhomes and apartments associated with a mixed -use development. Most commercial uses and institutional uses are permitted, whereas most industrial uses are either limited or not permitted. A schedule of permitted uses in RCC -N zoning district is attached for reference. SURROUNDING ZONING AND LAND USES: North: The property on the north side of Barthold Road is undeveloped, partially zoned Regional Center Residential 1 (RCR -1), and partially within the City of Denton ETJ. The portion within the ETJ was part of the 2010 Annexation Plan and is currently scheduled to be annexed in March 2016. East: To the east across N I -35 is the Travel Centers of America truck stop zoned RCC -D. The site also surrounds Foster's Western Wear on three sides which is zoned RCC -N. South: The property directly to the south is a single- family house zoned RCC -N. West: The property directly to the west is a tire repair and sales shop zoned RCC -N. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: Surrounding properties are primarily zoned RCC -N, Regional Center Residential 1 (RCR -1) or Regional Center Commercial Downtown (RCC -D), which are intended to promote a mix of commercial and high - density residential uses with a walkable, urban form. These zoning districts were consistent with the Comprehensive Plan approved in 1999; however this type of development never occurred and the community vision for the area changed to be more employment and commercial oriented with the adoption of Denton Plan 2030 in February of 2015. Today the area is primarily developed with agricultural or commercial uses. A rezoning to EC -C would be compatible with surrounding uses and would serve as the catalyst for implementing the new vision for this area. Staff anticipates the surrounding area will be rezoned to EC -C, Employment Center Industrial (EC -I), or similar zoning district to establish consistency with this recent update to the Comprehensive Plan. COMPREHENSIVE PLAN: As far back as the 1988 Comprehensive Plan, only two areas were planned as the city's major "Urban Centers." One was located around the area of the Golden Triangle Mall and the other was located along the I -35 corridor between US 380 and US 77. A third urban center was added in the 1999 Denton Plan near the intersection of I- 35W and John Paine Road. This center never developed and was eventually incorporated into the plans for the Hunter Ranch Master Planned Community. Lastly, a fourth urban center was added in 2007 with approval of Rayzor Ranch. With only the Rayzor Ranch and Golden Triangle Mall areas active today, the community expressed its doubts about the ability to support all four planned urban centers during the Community Forums of Denton Plan 2030. In response to this input, the urban center at I -35 between US 380 and US 77 was re- designated from a "Regional Mixed Use Activity Center" to a `Business Innovation" district with adoption of Denton Plan 2030 in February 2015. This changed the vision of this area from a high - density, mixed use activity center to an area more focused on employment opportunities and supporting commercial uses. Until which time the City's zoning regulations can be updated for consistency with Denton Plan 2030, the EC -C and EC -I zoning districts are the most appropriate zoning districts to achieve this vision. "Business Innovation" is intended for large tracts of land that are appropriate for well - planned, larger scale office and employment parks with supporting uses such as retail hotels, and residential. Primary uses include City of Denton Page 2 of 4 Printed on 10/2/2015 File #: Z15 -0025, Version: 1 office, research and development, and light manufacturing. This designation is proposed in areas that are in close proximity to commercial use areas and employment hubs so that future development may build from this proximity and create a critical mass for economic development. Development criteria of the Business Innovation future land use designation include: a) Typical uses may include office parks and flexible office space to encourage the establishment of research and development enterprises, start -ups, and opportunities for business innovation. b) Supporting and complementary retail and services are allowed by right. c) Publicly- accessible parks and greenways and continuity with the pedestrian and bicycle network is encouraged. d) Development should be sited accessible to transit routes to encourage taking transit to work. e) Development should be sited nearby to existing residential areas to encourage jobs located close to employment centers. f) The character of this area should be maintained by ensuring that new development is sensitive to the surrounding built and natural context in scale and form as described above. The Preferred Growth Concept of Denton Plan 2030 also identified the intersection of US 77 and N I -35 as a "Placemaking and Urban Vitality Center" due to its strategic location as the northern gateway into the City of Denton. CONSIDERATIONS: 1. According to the applicant, the purpose of the rezoning request is to permit a Love's Travel Stop and associated uses on the property. Tire repair, truck scales, and light truck maintenance are included in the applicant's intended development. These uses, however, are classified as Vehicle Repair which is not a permitted use in the RCC -N district. A rezoning to EC -C district would permit all uses proposed by the applicant. 2. The site has been historically used a gas station and the property across N I -35 to the east is currently used a Travel Centers of America truck stop. The area, due to its unique location at the northern gateway of Denton, is ideal for uses that support the traveling population commuting through Denton towards Dallas, Fort Worth, or Oklahoma and future employment- related development that may occur in the surrounding area. 3. In response to community input about the inability to support four "urban centers," the future land use designation of the subject property was changed from a Regional Mixed Use Activity Center to a Business Innovation district upon approval of Denton Plan 2030 in February 2015. Until the zoning districts are updated in response to Denton Plan 2030, the proposed EC -C zoning district is most consistent with the goals of the Business Innovation district. 4. Surrounding land uses are primarily agricultural or commercial. A rezoning to EC -C would permit a greater amount of commercial uses consistent with these uses while simultaneously removing the potential for new residential uses. As there are no high - density residential developments in this area, no properties are impacted by the proposed change in future land use designation or rezoning of the subject property. 5. It is anticipated that a future city - initiated rezoning will change most of the surrounding properties to an EC -C, EC -I, or equivalent zoning district to meet the area's broader goals within Denton Plan 2030. 6. Per Section 35.3.4.1) of the DDC, zoning changes may be approved if the proposed rezoning facilitates City of Denton Page 3 of 4 Printed on 10/2/2015 File #: Z15 -0025, Version: 1 the adequate provision of transportation, water, sewer, schools, parks, and other public requirements and public convenience. Public infrastructure and services will be provided upon development of the site. STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding properties and is consistent with the goals and objectives of the Denton Plan 2030. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, seven notices were sent to property owners within 200 feet of the subject property, ten 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. PROJECT TIMELINE: Application Received: 1st Submittal Sent to DRC Members Comments Released to Applicant: DRC Meeting with Staff: Business Days under DRC Review: Business Day out to Applicant: Total Business Days: EXHIBITS: • Aerial Map Zoning Map Future Land Use Map • RCC -N Permitted Uses • EC -C Permitted Uses • Applicant Narrative • Notification Map Prepared by: Mike Bell Senior Planner August 3, 2015 August 5, 2015 August 21, 2015 Declined 12 0 12 Respectfully submitted: Munal Mauladad Deputy Director, Development Services City of Denton Page 4 of 4 Printed on 10/2/2015 SA1,ega1\0ur Documents\Ordinances\] 5\7,1 5-0025 Ordinance,doex ORDINANCE NO. AN ORDINANCE OF THE CITY OF Di--.N'rON,'FEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A REGIONAL CENTER COMMERCIAL NEIGHBORHOOD (RCC-N) ZONING DISTRICT AND USE CLASSIFICATION TO AN EMPLOYMENT CENTER COMMERCIAL (EC-C) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 15.811 ACRES OF LAND GENERALLY LOCATED ON THE SOUTHWEST CORNER OF NORTH INTERSTATE 35 AND BARTHOLD ROAD, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0025) WHEREAS, Love's Travel Stops and Country Stores has applied for a zoning change on approximately 15.811 acres of land legally described in Exhibit "A", attached hereto and incorporated herein by reference (hereinafter, the "Property") from a RCC-N zoning district and use classification to an EC-C zoning district and use classification; and WHEREAS, on October 7, 2015, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (7-0) of the change in zoning district and use classification; and WHEREAS, on November 17, 2015, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The zoning district and use classification for the Property is hereby changed from RCC-N to EC-C. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by -fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record- Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY "'A APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Exhibit A Legal Description BEING all that certain lot, tract, or parcel of land situated in the B.B.B. and C.R.R. Company Survey Abstract Number 141 in the City of Denton, Denton County, Texas, being all that certain tract of land conveyed by deed from Anjum Investments, LP to Love's Travel Stops & Country Stores, Inc. recorded under Document Number 2014 - 53372, Real Property Records, Denton County, Texas, and being all that certain tract of land conveyed by deed from Kelsoe Tractor Company, Inc.to Love's Travel Stops & Country Stores, Inc. recorded under Document Number 2014 - 58347, Real Property Records, Denton County, Texas, and being all that certain tract of land conveyed by deed from Ronnie E. Riley and Nora K. Riley to Love's Travel Stops & Country Stores, Inc. recorded under Document Number 2014- 51286, Real Property Records, Denton County, Texas, and being all that certain tract of land conveyed by deed from Kelsoe Tractor Company, Inc. to Love's Travel Stops & Country Stores, Inc. recorded under Document Number 2014 - 14134, Real Property Records, Denton County, Texas and being a part of and being more particularly described as follows: BEGINNING at a P.K. nail found for corner in Barthold Road, a public roadway, said point being the northeast corner of that certain tract of land conveyed by deed from County 20 Storage and Transfer, Inc. to Deeper Life Bible Church recorded under Document Number 2009 - 56655, Real Property Records, Denton County, Texas; THENCE S 890 29'00" E, 559.13 feet with said Barthold Road to an iron rod found for corner at the beginning of a right -of -way flare; THENCE S 450 22'00" E, 144.55 feet with said right -of -way flare to an iron rod set for corner in the west line of Interstate Highway Number 35, a public roadway having a variable width right -of -way; THENCE S 01 ° 01' 08" E, 557.44 feet with said west line of said Interstate Highway to an iron rod found for corner, said point being the northeast corner of said Kelsoe Tractor Company tract; THENCE S 000 33' 41" E, 199.64 feet with said west line of said Interstate Highway to an iron rod found for corner, said point being the northeast corner of said Kelsoe Tractor Company tract; THENCE along the arc of a curve to the left having a central angle of 000 06' 25 ", a radius of 11685 feet, and arc length of 21.82 feet, whose chord bears S 000 36' 45" E, 21.82 feet with the said west line of said Interstate Highway to an iron rod set for corner, said point being the northeast corner of that certain tract of land conveyed by deed from Foster Real Estate Ltd. to Mark D. Foster and wife, Madeline M. Foster recorded under Document Number 2012 - 48899, Real Property Records, Denton County, Texas; THENCE N 890 29'27" W, 294.82 feet with the north line of said Foster tract to an iron rod set for corner, said point being the northwest corner of said Foster tract; THENCE S 000 24'43" W, 241.30 feet with the west line • said Foster tract to an iron rod found for corner, said point being the southwest corner of said Foster tract; TA610E S 890 26' 16" E, 301.87 feet with the south line of said Foster tract to an iron rod found for corner in said west line • said Interstate Highway, said point being the southeast cM rner • said Foster tract; THENCE S 020 39'07" E, 12.69 feet with said west line of said Interstate Highway 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 LaFern Landtroop to Vantage Fort Worth Energy LLC recorded under Document Number 2014-22936, Real Property Records, Denton County, Texas; THENCE N 890 21'06" W, 691.75 feet with the north line of said Vantage Fort Worth Energy tract to an iron rod found for corner in the east line of said Deeper Life Bible Church tract; THENCE N 000 25' 19" E, 252.56 feet with said east line of said Deeper Life Bible Church tract to an iron rod found for corner; THENCE N 000 38' 39" E, 879.38 feet with said east line of said Deeper Life Bible Church tract to the PLACE OF BEGINNING and containing 15.811 acres of land. Exhibit B Location Map Z15 -0025 Site Location / Aerial Map T. SITE �S- Parcels s f � ° '�,; � � ���; `�r� �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� Roads� n DE �'C. N u ETJ �. Date: 8 /7/2015 (ne aq oT uenton nas preparea maps Tor aepanmentai use. I nese are not om-1 maps or the uty or uenton ano snouia not De used Tor iegai, engineering or surveying purposes out ratner Tor reterence purposes. I nese maps are the property or the uty oT 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. III SITE Parcels Roads Z15 -0025 Site Location / Zoning Map 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 sui Eton 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 the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. ETJ RCR -1 o�� �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� DENTON V''Iluhninttng GYeG'rattryroz.nt - GIG Date: 8/7/2015 >urposes but rather for reference purposes. These maps are the property of the City and accurate information possible. No warranties, expressed or implied, are provic RCC -N RCR -1 RD -5X 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 sui Eton 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 the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. ETJ RCR -1 o�� �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� DENTON V''Iluhninttng GYeG'rattryroz.nt - GIG Date: 8/7/2015 >urposes but rather for reference purposes. These maps are the property of the City and accurate information possible. No warranties, expressed or implied, are provic Z15 -0025 Site Location / Future Land Use Map 1 M � ROW M9 SITE Future Land Use Parcels 1111M Rural Areas Roads Low Residential Business Innovation ►M Busi InnoN 00 �0 dentiall `�r� �����iiiiuuuuuu�uiiiui����lllllllllllllllllllllllllllllllllllllll���ii� DENTON V''Iluhninttng GYeG'rattryroz.nt - GIG Date: 8/7/2015 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. Regional Center Commercial Neighborhood (RCC -N) Permitted Uses RESIDENTIAL: P Agriculture, Attached Single- family Dwellings, Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled L(7) Livestock L(4) & L(6) Multi - Family Dwellings SUP Group Homes COMMERCIAL: P Home Occupation, Hotels, Motels, Movie Theaters, Restaurant, Private Club, Bar, Drive - through Facility, Professional Services and Offices, Quick Vehicle Servicing, Laundry Services, Indoor Recreation, Commercial Parking Lots, Broadcasting or Production Studio L(9) Bed and Breakfast L(13) Retail Sales and Service L(14) Administrative or Research Facilities L(38) Temporary Uses SUP Major Event Entertainment INDUSTRIAL L(12) L(13) L(14) L(21) L(27) L: Craft Alcohol Production Warehouse, Retail Veterinary Clinics Bakeries Gas Wells INSTITUTIONAL: P Community Service, Parks and Open Space, Churches, Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary School, Middle School, High School, Colleges, Conference /Convention Centers, Hospital, Elderly Housing, Medical Centers, Mortuaries L(14) Business/Trade School SUP Basic Utilities, WECS (Free- standing Monopole Support Structure), WECS (Building Mounted) P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) = Multi- family is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi - family use within one (1) year prior to the effective date of Ordinance No. 2005 -224; or 5. If allowed by a City Council approved neighborhood (small area) plan. L(6) = Permitted only on second (2nd) story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. 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(8) = Travelers' accommodations are permitted, provided that: 1. The business -owner or manager shall be required to reside on the property occupied by the accommodation, or adjacent property. 2. That each accommodation unit shall have one off - street parking space, and the owners shall have two parking spaces. All spaces shall be in conformance with the requirements of the Off - Street Parking section of this Chapter. 3. That only one ground sign or wall sign, constructed of a non - plastic material, no- interior illuminated of four square feet maximum size be allowed. Any exterior illumination of signage shall be installed such that it does not directly illuminate any residential structures adjacent or nearby the travelers' accommodation. L(9) = All restrictions of L(8), but limited to no more than 15 guest units. L(12) = On- premise consumption and /or retail sales is required. Uses are limited to no more than 10,000 square feet of gross floor area for production, bottling, packaging, storage, and other manufacturing related activities. A SUP is required for additional square footage. L(13) = Uses are limited to no more than fifty -five thousand (55,000) square feet of gross floor area per lot. L(14) Uses are limited to no more than 10,000 square feet of gross floor area. L(21) = Bakery and bottling areas not to exceed 2,500 square feet. Sales on premises of products produced required I this zone 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. Employment Center Commercial (EC -C) Permitted Uses RESIDENTIAL: P Agriculture L(7) Livestock COMMERCIAL: P Hotels, Motels, Retail Sales and Service, Restaurant, Private Club, Bar, Drive - through Facility, Professional Services and Offices, Quick Vehicle Servicing, Vehicle Repair, Auto and RV Sales, Laundry Facilities, Outdoor Recreation, Indoor Recreation, Major Event Entertainment, Commercial Parking Lots, Administrative or Research Facilities, Broadcasting or Production Studio L(38) Temporary Uses INDUSTRIAL: P Printing /Publishing, Bakeries, Craft Alcohol Production, Manufacture of Non - Odiferous Foods, Light Manufacturing, Wholesale Sales, Self - Service Storage, Kennels, Veterinary Clinics L(27) Gas Wells L(29), SUP Wrecker Service and Impound Lots L(34) Warehouse, Retail INSTITUTIONAL: P Basic Utilities, Community Service, Parks and Open Space, Churches, Semi - Public Halls, Clubs, and Lodges, Business /Trade School, Adult or Child Day Care, Colleges, Conference /Convention Centers, Hospital, Elderly Housing, Medical Centers, Mortuaries SUP WECS (Free- Standing and Building- Mounted) P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: 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(27) = Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production. L(29) = Wrecker Services and Impound Lots must comply with the following provisions: 1. The subject lot shall comply with the provisions of the Texas Administrative Code, regarding Vehicle Storage Facilities. 2. Lot Screening: All stored vehicles shall be opaquely screened from all rights -of -way and residential uses and zoning districts. 3. Parking and vehicle storage areas associated with wrecker services and impound lots activities are not allowed within undeveloped floodplain, water - related habitat, and riparian buffer environmentally sensitive areas (ESA). 4. Best management practices addressing stormwater quality must be implemented and maintained on site. Management practices must attain the pollutant removal capabilities recommended for parking areas in the Integrated Storm Water Management (ISWM) Manual, as published by the North Central Texas Council of Governments, or similar practices consistent with low impact development (LID) approaches. L(34) = Permitted with no more than one hundred fifty thousand (150,000) gross square feet and eight (8) truck docks. All docks or loading bays shall be to the rear or side of the structure and not viewable from the street. The buffering standards for outdoor storage shall apply, both to any outdoor storage activity and to the loading docks. L(38) — Must meet the requirements of Section 35.12.9. Developer: Development Property Address Parcel Numbers: Current Property Zoning: Proposed Property Zoning: G;oIm I nA ( rq E e° I"d k,i IFI, 01 "1 Pd, A I'd I �dfY C d*a I R En I,, I"', r V dlfnl ID d',: R P 41 ri, fP +113 Id f A 15'd'PHk[I I. "r,c q+ ",,il f. rfd � NIAW�WIdtltlNk +VWuAb4NiWXVHWXdtlk4J�tmry ''61150 37 -�4II:34I5 144,10 IIL.. 111 : :Aw "11111 :` "I" " III ' "E STREIIIIIET �!!I'���i�ulII IIIVY III : :r: IIF, IIN„I V IA11 *,d1111114,A, F�:`W.... 32446 City of Denton Zoning Change Application Love's Travel Stops and Country Stores 4981 Barthold Road Denton, Texas 111203, 111210, 36948, 36942, and partial 36962 RCC -N, Regional Center Commercial Neighborhood RCC -D, Regional Center Commercial Downtown The proposed development project is for the construction of a Love's Travel Stop including three restaurant services and a Tire Maintenance building. The existing development tract consists of approximately 16 acres of land that include a closed truck stop, office /warehouse space, storage areas for shipping containers, and miscellaneous materials storage areas. Love's is proposing to demolish all existing structures and paved surfaces and construct a modern travel center facility which will include the Love's Country Store and three restaurants. The total building size will be approximately 13,500 square feet. One of the restaurants will include drive -thru service; the others will be walk -in only. The retail business will include 10 car fueling stations and, typically, 80 to 85 car parking spaces. The development will also include 8 to 9 lanes for semi -truck fueling. Other improvement to accommodate semi -truck drivers include certified scales, approximately 100 semi -truck parking spaces, and a tire service and light truck maintenance building that will be approximately 8,000 square feet. The overall site consists of five parcels, each purchased by Love's Travel Stops as evidenced by the attached deeds. There is a large amount of existing impervious area onsite, including buildings which formerly housed businesses. The main businesses included a truck and auto plaza and a smaller gas station. The businesses have since closed and the property is now vacant. As is such, there is no current plan for vehicular or pedestrian circulation within the site. Additionally, the site currently has no open space, recreation or preservation areas. The surrounding property uses are largely consistent with the proposed Love's usage. There is vacant land to the north and southwest of the site. A tire service company lies to the west. An existing truck stop also lies to the east on the opposite side of Interstate 35. The site partially surrounds an existing western shop which is still in business. There is also an existing residence located to the south of the property. This residence is partially cut off from the proposed travel stop by the existing western shop. The site generally slopes from the southeast corner north to Barthold Road. As previously stated, the site is currently covered with a large amount of gravel and asphalt impervious area as well as various buildings and fuel canopies. There is an existing ditch along the 1 -35 service road that flows south to north and then turns west along Barthold Road where it crosses to the north via three 24" corrugated metal pipes. There is also an existing ditch along the western property boundary which flows south to north and turns east at Barthold Road before crossing to the north via the CMPs. There is also a concrete drainage ditch on the northernmost parcel that discharges to the Barthold Road ditch. There is no evidence of an existing attenuation feature currently onsite. At this time it is not known exactly how potable water was being supplied to the former businesses, although it is believed that they were being supplied by private wells. Wastewater was being collected by an onsite gravity system which discharged to an existing lift station located at the northwest corner of the property. There is also an existing overhead power line which was used to feed electricity to the businesses. The overhead power line runs around the perimeter of the property with service lines running throughout the interior of the site. The proposed land uses will be consistent with those that are already in place. The development will consist of a travel stop with restaurants and auto and truck fueling canopies. The zoning change is required due to the light maintenance activities that will take place within the tire building. These activities will include tire maintenance and replacement as well as light truck maintenance including oil changes and minor repairs. As is typical to these sites, effort is made to maintain separation between auto and truck customers. The diesel canopy is normally placed on the opposite side of the building and is accessed by truck driveways which are normally independent of the main auto driveways. Directional signage is also used to direct autos and trucks to their respective refueling areas. Pedestrian activity is normally minor around these sites, however sidewalks and pedestrian striping will be provided as required by local and federal regulations. The proposed site condition will include removal of all of the existing impervious areas including the existing buildings and canopies. The site will be graded to drain away from all buildings and canopies as are typical for these sites. If required, a detention pond will be designed to attenuate any additional runoff and maintain discharge rates to pre - development conditions, as required. At this time it is not known if a detention pond will be required but one will be constructed if necessitated due to post - development runoff rates. Storm water will be collected on -site and discharged to the existing channel conveyance system that exists on the property. The design process will ensure that negative downstream impacts are avoided. Based on very preliminary investigations, sewer service will be collected and discharged to the existing pump station located near the northwest corner of the property. Water will be served by the existing water main that is located on FM Road 1173. The water main is approximately 565' south of the property. Connection to the water main will require acquisition of a utility easement from the adjacent land owner(s). The development will generate approximately 10,000 gpd of water usage and sewer discharge. Sufficient open space will be provided in compliance with City of Denton requirements. Landscaping will also be specified to provide the required overstory and understory planting as well as canopy coverage of the parking areas. Being that the surrounding land uses are largely consistent with what is being proposed, compatibility should not be a major concern. However, due to the residence to the south, landscape buffers and vegetative screening will be provided in an effort to reduce or eliminate any concerns. Overhead lighting for the site will be designed to remain confined to the property boundaries and not affect surrounding property owners. This development will be designed to comply with all aspects of the City of Denton Development Code and will provide and upscale, attractive business that will be an asset to the local community. Z15 -0025 Site Location / Notification Map 600-ft E..: Of r 200ft Buffer o o Q B SITE N W E o zss 51. 1,— s sV Parcels F4 a ° �,> u�uuuuuu�u���ui�iiiiiii��lllllllllll ��� DENTON Roads lll�aniin�ng Depifti�rtient - GIG Date: 8 /7/2015 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. 1 2 DRAFT Minutes DRAFT 3 Planning and Zoning Commission 4 October 7, 2015 5 6 After determining that a quorum was present, the Planning and Zoning Commission convened a 7 Work Session on Wednesday, October 7, 2015 at 5:00 p.m. in the City Council Work Session 8 Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items 9 were considered: 10 11 PRESENT: Chair Jim Strange. Commissioners: Amber Briggle, Larry Beck, Gerard 12 Hudspeth, Devin Taylor, Andrew Rozell and Frank Dudowicz. 13 14 ABSENT: None. 15 16 STAFF: Athena Green, Earl Escobar, Julie Wyatt, Mike Bell, Sophie Huemer, 17 Munal Mauladad, Jennifer DeCurtis, and Ross Culbertson. 18 19 WORK SESSION 20 21 Chair Jim Strange called the Work Session to order at 5:00 p.m. 22 1. Clarification of agenda items listed on the agenda for this meeting, and discussion of issues not briefed in the written backup materials. 23 24 Munal Mauladad, Deputy Director of Development Services, stated staff would present each of 25 the agenda items. 26 27 Ross Culbertson, Senior Planner, provided the request for Consent Agenda Item 3A. There were 28 no questions on the plat. 29 30 Sophie Huemer, Associate Planner, provided the request for Consent Agenda Item 3B. 31 Commissioner Beck questioned what the proposed use would be. Huemer stated a use would be 32 pediatric medical center and offices. Commissioner Beck questioned the gas well tanks at the 33 intersection of Bonnie Brae Street and Scripture Street. Darren Groth, Gas Well Administrator, 34 stated there are three (3) tanks at that site. He stated they are only water tanks. Commissioner Beck 35 acknowledged. Huemer stated the proposed plat meets the fire code and Denton Development 36 Code requirements. 37 38 Mauladad stated staff will come back to Consent Agenda Item 3C once Commissioner Briggle 39 arrives. 40 41 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3, on behalf of 42 Senior Planner Mike Bell. Commissioner Beck questioned the proposed use for the site. Wyatt 43 stated the applicant intends to develop an office and warehouse space. Commissioner Beck 44 questioned if it would be considered light industrial use. Wyatt stated she hasn't received that I information. She stated the applicant would have to meet the buffer requirements as well. 2 Mauladad stated a 30 foot buffer would be required, the applicant went before the Zoning Board 3 of Adjustment to receive a variance on the buffer, which was granted for a 20 foot buffer. 4 Commissioner Beck acknowledged. 5 6 Commissioner Hudspeth questioned the preliminary plat process and the proceeding steps 7 following the preliminary plat. Mauladad provided the steps for the preliminary and final plat 8 process. Jennifer DeCurtis, Deputy City Attorney, stated the preliminary plat process is to make 9 sure the developer is on the right track before moving forward with additional steps. Chair Strange 10 informed Commissioner Hudspeth of the Development Review Committee Pre - Application 11 process as well. 12 13 Commissioner Briggle arrived to the meeting. 14 15 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3E. She stated the 16 plat was approved by this Commission in the past, however, the applicant has decided to detain 17 onsite instead of underground. Commissioner Beck questioned the ingress and egress from the 18 subject site onto Teasley Lane. Earl Escobar, Engineering Development Review Manager, stated 19 the construction plans for the site indicate two entrances off of Teasley Lane. There will be one on 20 the common property line and one to the north of the property. Escobar stated both of the entrances 21 will have a dedicated right -turn lane to transition into the site. He stated the entrance to the north 22 will have a dedicated left -turn lane into the site. 23 24 Commissioner Beck questioned if there was any consideration to only make the entrances to the 25 site on Teasley Lane and the egress to the site on Hickory Creek Road. Escobar stated there was 26 concern with the north entrance to allow only a right -turn egress. Commissioner Beck 27 acknowledged. 28 29 Commissioner Dudowicz questioned if there are preliminary drawings for the Texas Department 30 of Transportation (TxDOT) for the entire Teasley Lane project. Escobar stated he is not familiar 31 with the entire project. Escobar stated the proposed designs for the subject site have been 32 coordinated with TxDOT. Commissioner Dudowicz requested contact information for the Texas 33 Department of Transportation (TxDOT) liaison with the City, he requested a meeting with TxDOT 34 to discuss their proposed timelines along with proposed development for various roads with 35 Denton, primarily including the Teasley Lane area. 36 37 Commissioner Dudowicz questioned expansion plans for Hickory Creek Road. Escobar stated 38 Sprouts Farmers Market would widen Hickory Creek Road with turn lanes at their site. 39 Commissioner Dudowicz questioned expansion plans for Ryan Road. Escobar stated Wal -Mart 40 would be required to make those updates. DeCurtis reminded the Commission to stay on topic. 41 Commissioner Dudowicz stated it has to do with the traffic for the area. 42 43 Commissioner Taylor questioned the expected date for the TxDOT widening of Teasley. Escobar 44 stated August 2017, with a three to five year completion time. 45 2 I Chair Strange stated since Commissioner Briggle has arrived the Consent Agenda Item 3C can be 2 discussed. 3 4 Julie Wyatt, Associate Planner, provided the request for Consent Agenda Item 3C. Commissioner 5 Briggle questioned the circles on the plate. Wyatt stated those are the blocks, she stated the 6 applicant can add that wording to the plat to make it clear. Commissioner Briggle stated on other 7 plats, even if a gas well isn't on the site the gas well has been added to the plat in a greyed out 8 color to indicate the neighboring gas well, she stated she did not see that on this plat. Wyatt stated 9 there is a gas park located within Robson Ranch adjacent to this property, she stated it wasn't 10 added to the plat. 11 12 Commissioner Briggle stated they are normally at least identified on the plat. Munal Mauladad, 13 Deputy Director of Development Services, stated this site is a Planned Development, therefore, 14 the items are dictated differently on the site. Commissioner Briggle acknowledged. 15 16 Commissioner Beck questioned the neighboring gas wells. Wyatt stated the plat meets the 17 requirements of the Robson Ranch Planned Development; the development has their own set of 18 requirements. Darren Groth, Gas Well Administrator, and Mauladad provided information the 19 Planned Development requirements. 20 21 There were no questions from the Commissioners for Agenda Items 4A, 5A, and 5B. 22 23 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 5C, on behalf of 24 Senior Planner, Mike Bell. Commissioner Beck questioned if Toyota of Denton and Honda of 25 Denton were leasing the site. Wyatt stated she is not aware of those business details. Commissioner 26 Beck questioned the purpose of needing to rezone the site. Wyatt stated the subject site is a Planned 27 Development which requires a set process to make any changes to the site. She stated the applicant 28 would rather rezone the site in order to make those changes. 29 30 Julie Wyatt, Associate Planner, provided the request for Public Hearing Item 51), on behalf of 31 Senior Planner, Mike Bell. She provided the Commission with a handout from one of the returned 32 responses for the public notices. Commissioner Dudowicz questioned if the TA Truck Stop parallel 33 to the subject site on I -35 would have to be addressed as well, Wyatt confirmed. 34 35 Commissioner Briggle questioned the neighboring residential site. Wyatt stated she wasn't aware 36 of a neighboring residential property. Commissioner Rozell stated there is a house next to Foster's 37 Western Wear. Commissioner Briggle questioned buffer requirements. Wyatt stated the subject 38 site would be considered an institutional use, the neighboring site is vehicle repair, which is a 39 commercial use; therefore, a buffer would not be required. 40 41 Commissioner Rozell stated he has concerns with traffic in the area. He stated traffic coming from 42 Krum, Texas, has to come down Farm to Market Road (FM) 1173 to intersect with I -35. The traffic 43 in the morning at this time gets backed up heavily. Wyatt stated in the future Barthold Road is 44 proposed to be improved and to intersect with North Elm Street, which should alleviate some of 45 the traffic on FM 1173. 46 3 I Earl Escobar, Engineering Development Review Manager, stated during the plat process I -35 and 2 North Elm Street would be aligned with a signaled intersection. Commissioner Rozell stated that 3 will address a portion of the traffic. He stated he still has concerns with the underpass being a small 4 space for the amount of semi - trailer trucks in the area. He questioned if the expansion would 5 address the underpass. Escobar stated not at this time, the proposed I -35 expansion project stops 6 at Highway 380 and I -35. He stated the subject site area would be until approximately 2030. 7 8 Ross Culbertson, Senior Planner, provided the request for Public Hearing Item 5E. He stated the 9 applicant sent their own property notification letter in addition to the one staff sends out. 10 Commissioner Taylor questioned if the proposed development allows space for the proposed 11 realignment of Post Oak Drive to University Drive. Culbertson stated the realignment doesn't 12 interfere with the subject site, it develops around the site. 13 14 Earl Escobar, Engineering Development Review Manager, stated when the development comes to 15 the area staff will ensure that the right -of -way is met with the proposed realignment. Commissioner 16 Taylor acknowledged. 17 18 Commissioner Taylor discussed setbacks and buffers to separate the subject site from the 19 neighboring City of Denton Landfill and Treatment Plant site. Munal Mauladad, Deputy Director 20 of Development Services, stated the City of Denton Landfill site has a Capital Improvement Plan 21 program, which would be related to the setbacks and buffer requirements. Commissioner Taylor 22 questioned if those would be during the planning process. Mauladad confirmed. 23 24 Commissioner Briggle stated this is the first project with a conservation development to come 25 before this Commission since the update of the Comprehensive Plan. She stated she likes to see 26 these types of developments. She questioned when this Commission would start seeing more 27 conservation developments. Culbertson stated the applicant initiated the development with staff's 28 support. He stated when staff reviews a project with an applicant they will work more on these 29 types of developments. 30 31 Commissioner Dudowicz stated he agrees with Commissioner Briggle's comment. Mauladad 32 stated the Denton Development Code (DDC) and the Comprehensive Plan do not communicate on 33 the same level. She stated staff is aware the elements of the Comprehensive Plan and critical. She 34 stated an overhaul of the DDC needs to take place as well. 35 36 Chair Strange adjourned the Work Session at 6:16 p.m. 37 38 REGULAR MEETING 39 40 The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, October 41 7, 2015 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 42 the following items were considered: 43 44 Chair Strange called the Regular Meeting to order at 6:39 p.m. 45 46 1. PLEDGE OF ALLEGIANCE 4 I A. U. S. Flag 2 B. Texas Flag 3 4 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION 5 MINUTES FOR: 6 7 A. PZ15 -009 SEPTEMBER 16, 2015 8 9 Commissioner Devin Taylor motioned, Commissioner Amber Briggle seconded to approve the 10 meeting minutes. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner 11 Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye" 12 Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner 13 Andrew Rozell "aye ". 14 15 3. CONSENT AGENDA: 16 A. PP15 -0026 Consider a Preliminary Plat of Block A, Lots 7 & 8 of the Westpark Industrial Addition. The approximately 27.56 acre property is generally located on the northeast corner of Airport Road and South Western Boulevard within the J. Davis Survey, Abstract No. 326. (PP15 -0026, Westpark Industrial, Ross Culbertson) 17 B. FP15 -0028 Consider a Final Plat of Lot 1 Block A, of the Cook Children's Rayzor Ranch Addition. The approximately 3.32 acre subject property is generally located at the north side of Scripture Street and 1300 feet east of Interstate Highway 35, within the B.B.B. & C.R.R. Survey, Abstract No. 192. (FP15 -0028, Cook Children's Rayzor Ranch Addition, Sophie Huemer) 18 C. FP15 -0019 Consider a Final Plat of Robson Ranch, Unit 10 -2. The approximately 25 acre subject property is generally located 520 feet northwest of the corner of Michelle Way Street and Crestview Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (FP 15 -0019, Robson Ranch, Unit 10 -2, Julie Wyatt) 19 D. PP15 -0019 Consider a Preliminary Plat of Lot 1, Block A of the Perfect Finish Landscaping Addition. The approximately 4.99 acre subject property is generally located on the north side of Fishtrap Road, approximately 500 feet east of Geesling Road. (PP15 -0019, Perfect Finish Landscaping, Mike Bell) 20 E. FP15 -0024 Consider a Final Plat of the Sprouts Addition. The approximately 7.02 acre property is generally located on the northwest corner of Teasley Lane (FM 2181) and Hickory Creek Road. (FP15 -0024, Sprouts Addition, Mike Bell) 21 22 Commissioner Amber Briggle motioned, Commissioner Frank Dudowicz seconded to approve the 23 Consent Agenda. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner 24 Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye" 5 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 Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 4. ITEMS FOR INDIVIDUAL CONSIDERATION A. PZ15 -010 Consider and appoint a member for the Planning and Zoning Commission Chair and Vice -Chair positions. Commissioner Devin Taylor motioned, Commissioner Andrew Rozell seconded to ratify the election of Jim Strange as Chair and Amber Briggle as Vice - Chair. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 5. PUBLIC HEARINGS A. FR15 -0012 Hold a public hearing and consider a Final Replat of Lots 1R, 2R, 3R, 5R, 6R, 8R, 9R, and IOR, Block A of the Rayzor Ranch Town Center, Phase I. The aproximately 99.532 acre property is _ generally located at the southeast corner of University Drive (US 380) and Interstate Highway 35 (I -35), within the B.B.B. & C.R.R. Survey, Abstract 192. (FR15 -0012, Rayzor Ranch Town Center Phase 1, Sophie Huemer) Chair Strange opened the Public Hearing. Sophie Huemer, Associate Planner, provided the presentation for this request. There were no questions from the Commissioners. There was no one to speak during the Public Hearing. Chair Strange closed the Public Hearing. Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". B. FR15 -0003 Hold a public hearing and consider a Final Replat of Block A, Lots 2R -1, 3 & 4 of the Mid States Realty Subdivision. The 5.13 acre property is generally located on the west side of Loop 288, approximately 800 feet north of Spencer Road within the Mary L. Austin Survey, Abstract No. 4. (FR15 -0003, Mid States Realty Subdivision, Ross Culbertson) Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the presentation for this request. There were no questions from the Commissioners. Greg Edwards, Greg Edwards Engineering Services, 1621 Amanda Court, Ponder, Texas. Edwards stated he represents the owner. He would like to create two pad sites for future development. There was no further discussion. There was no one else to speak, Chair Strange closed the Public Hearing. Commissioner Devin Taylor motioned, Commissioner Larry Beck seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 11 I "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 2 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 3 C. Z15 -0015 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 15.02 acres from Planned Development District 12 (PD -12) to a Regional Center Commercial Downtown (RCC -D) District. The subject property is generally located on the south side of South Interstate 35 East, aproximately 2,100 feet northwest of Post Oak Drive. (Z15 -0015, Toyota of Denton, Mike Bell) 4 5 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 6 presentation for this request. She stated staff recommends approval of this request. There were no 7 questions for staff. There was no one to speak during the Public Hearing. Chair Strange closed the 8 Public Hearing. 9 10 Commissioner Frank Dudowicz motioned, Commissioner Andrew Rozell seconded to approve 11 this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber 12 Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner 13 Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell 14 "aye ". 15 D. Z15 -0025 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 15.811 acres from a Regional Center Commercial Neighborhood (RCC -N) District to an Employment Center Commercial (EC -C) District. The subject property is generally located at the southwest corner of N I -35 and Barthold Road. (Z15 -0025, Love's Travel Stop, Mike Bell) 16 17 Chair Strange opened the Public Hearing. Julie Wyatt, Associate Planner, provided the 18 presentation for this request, on behalf of Senior Planner, Mike Bell. She stated staff recommends 19 approval of this request. The applicant is present. 20 21 Commissioner Rozell shared his concerns with the traffic in the area. He stated the traffic concerns 22 will only get worse with the proposed development. Rozell stated the I -35 underpass is already a 23 small intersection. Wyatt stated those concerns would normally be addressed during the platting 24 process. She stated a traffic analysis would be completed at that time as well. 25 26 Commissioner Rozell stated he would like to see Barthold Road and Farm to Market Road 1173 27 reviewed during the traffic analysis. Earl Escobar, Engineering Development Review Manager, 28 stated if this Commission has concerns with those areas the traffic analysis can address them during 29 the platting process as well. There was no further discussion. 30 31 The following individuals spoke during the Public Hearing: 32 33 Jeremey Reese, 4420 Jackson Road, Marianna, Florida. Reese stated he is the applicant 34 and is present for questions, he does not have a presentation. 35 7 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 Mike Ososanya, 4981 Barthold Road, Denton, Texas. Stated he has concerns with noise and pollution in the area. He represents the property owner to the west of the subject site. Commissioner Dudowicz questioned Ososanya on the use of the site he represents. Ososanya stated a Wingfoot Commercial Tire Systems. Samuel Akinniyi, 1516 Vista Verde Street, Denton, Texas. Support of this request. Commissioner Rozell stated the traffic issue needs to be addressed immediately. Chair Strange read public response received from Joseph Agbo into the record. Agbo did not stated if he was in favor or opposed to the request. There was no one else to speak Chair Strange closed the Public Hearing. Commissioner Hudspeth requested clarification from the applicant. Chair Strange opened the Public Hearing for clarification. Commissioner Hudspeth requested clarification from the applicant for the proposed overview of the site. Jeremey Reese, applicant, stated there will potentially be two or three restaurants within the Love's Travel Stop. He stated he isn't certain which ones those will be at this time. There will be one of those restaurants with a drive -thru. The back of the site would contain the truck area and diesel bays. There will also be a light tire maintenance on the site. Commissioner Beck questioned if the business would be opened 24 hours a day seven (7) days a week. Reese confirmed. Commissioner Briggle questioned if a buffer is not required neighboring the church, then the church would be required to install a buffer if they wanted one. Wyatt confirmed. There was no further discussion. Chair Strange closed the Public Hearing. Commissioner Frank Dudowicz motioned, Commissioner Gerard Hudspeth seconded to approve this request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell it E. Z15 -0024 Hold a public hearing and consider making a recommendation to City Council regarding a rezoning of aproximately 20.0 acres from a Neighborhood Residential Mixed Use (NRMU) District to a Neighborhood Residential 4 (NR -4) District. The subject property is generally located on the south side of East McKinney Street (FM 426), aproximately 2,330 feet east of Orr Road. (Z15 -0024, Pecan Park, Ross Culbertson) Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the presentation for this request. He stated staff recommends approval of this request. Commissioner Rozell questioned the expectation of rural future land use. Culbertson stated rural was designated E3 I for larger lots within rural areas. Commissioner Rozell questioned if that was the expectation for 2 the Denton Plan 2030 updated. Culbertson confirmed. There were no further questions for staff. 3 4 Rod Zielke, ZPS Consulting Engineers, 1111 S. Main Street, Grapevine, Texas. Zielke stated he 5 doesn't have a presentation, he is available for questions. 6 7 Commissioner Briggle requested additional information from Zielke for this conservation 8 development plan request. Zielke stated this is the preliminary stage, he wanted to submit this stage 9 before they got into too much detail with the plan. The property has natural features, flood plain, 10 and heavily treed. Zielke stated the site is conducive to the conservation development. 11 Commissioner Briggle thanked Zielke for his work on this project. 12 13 Commissioner Beck questioned if the 20 acre development would be single- family residential. 14 Zielke stated the entire site would be 80 acres if the zoning for the 20 acres is approved. He stated 15 he would like to see it as a large tract of land. Commissioner Beck questioned if it would be single - 16 family residential. Zielke confirmed. 17 18 The following individual spoke during the Public Hearing: 19 20 Jeff Hardgrave, Atmos Energy, 5420 LBJ Freeway, Suite 1528, Dallas, Texas. Hardgrave 21 stated he wanted to make sure the applicant and Commission is aware that Atmos has a high 22 pressure pipeline underground neighboring the subject site. He stated he is not opposed to the 23 request, he just wanted it brought to the attention of this Commission. 24 25 Commissioner Taylor questioned if it is a gas well. Hardgrave stated it is a natural gas storage 26 well. There is gas drilling to the site, however, there is no fracking on the site, the process does not 27 require fracking. 28 29 Commissioner Dudowicz questioned how deep the pipeline is laid, Hardgrave stated 30 approximately 36 -48 inches deep. 31 32 Commissioner Briggle reminded the Commission that the item before them is the rezoning request, 33 it is not to review the site plan 34 35 There was no one else to speak, Chair Strange closed the Public Hearing. 36 37 Commissioner Rozell stated he feels the rezoning is compatible with the surrounding area. He 38 stated he does have concerns with the future land use. There was no further discussion. 39 40 Commissioner Larry Beck motioned, Commissioner Frank Dudowicz seconded to approve this 41 request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 42 "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 43 "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". 44 6. CONCLUDING ITEMS p] 1 2 Commissioner Briggle stated he is glad to see potential for conservation developments within the 3 community. She stated she would like to see an overview of where this is headed in the future. 4 5 Commissioner Taylor requested an agenda item to discuss the potential for a subcommittee of this 6 Commission. 7 Commissioner Dudowicz questioned if conditions are placed on an item what does staff do to 8 ensure those conditions are met. Munal Mauladad, Deputy Director of Development Services, 9 stated there are various steps associated with the approval process and conditions. She stated once 10 a project is submitted for a permit those conditions have to be met during the permitting and 11 inspection process. She stated if there are items not being met she would like those brought to her 12 attention and she will research them. 13 14 Commissioner Hudspeth stated he would like to see this Commission receive information earlier 15 in the process, if the City is aware of information to provide before it comes to this Commission 16 for review. Mauladad stated some of the items that come to the City for development are Building 17 Inspection related and others are Planning Division related. She stated she will meet with staff to 18 see if there is a process to gather information from both departments to provide to this Commission. 19 20 Chair Strange stated he would like to see an upcoming Work Session Item to discuss definitions, 21 street paving, developer responsibilities, and other requirements for traffic and street 22 improvements. Mauladad stated staff will bring something back to this Commission to address 23 those items. 24 25 Chair Strange thanked staff for providing this Commission with an updated matrix, he stated it has 26 been helpful. There was no further discussion, Chair Strange adjourned the Regular Meeting at 27 7:45 p.m. 28 29 10 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -1073, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: November 17, 2015 SUBJECT Hold a public hearing and consider an ordinance revoking a Specific Use Permit dated August 5, 2014, allowing a wrecker service and impound lot on property located in an Employment Center Industrial (EC -I) zoning and land use district on approximately 1.3 acres, generally located south of Smith Street, east of Dallas Drive, and north of Teasley Lane; and providing an effective date. BACKGROUND On August 5, 2014, City Council approved Specific Use Permit (SUP) S12-0001 permitting a Wrecker Service and Impound Lot on the subject property with conditions. The ordinance is attached for reference. Specifically, the conditions are: SUP Condition 42 Best management practices (BMPs) addressing storm water quality shall not be required unless there is documented contamination. City Staff is directed to implement a monitoring program to determine whether any contamination is exiting the Property and into the watershed. If City Staff documents such contamination, the Applicant shall either: (1) install BMPs designed to treat hydrocarbons and attain the pollutant removal capabilities recommended for parking areas in the Integrated Storm Water Management (ISWM) Manual, as published by the North Central Texas Council of Governments, or similar practices consistent with low impact development (LID) approaches, so that the Applicant can be in compliance with the Denton Development Code's L(29) requirement; (2) or lose the SUP and cease doing business at the Property. SUP Condition 43 The applicant shall install an eight -foot (8') high screening fence and a type "B" buffer along the perimeter of the site. The landscaping shall be planted along the outside of the fence, and shall be irrigated and kept alive at all times. Material for the construction of the screening fence shall be made of wood or other opaque materials. On November 18, 2014, a couple of months after approval of the SUP, the property owner submitted a new application (ASUP14 -0001) requesting that the SUP condition requiring the eight -foot (8') screening fence and buffer be amended to reduce the height of the fence from eight (8) feet to six (6) feet tall and to remove the buffer requirement. On December 2, 2014, the City Council denied the request and directed staff to enforce the SUP conditions as originally approved. City of Denton Page 1 of 3 Printed on 11/12/2015 File M ID 15 -1073, Version: 1 On December 17, 2014, the Planning and Environmental Services Departments held a meeting with the property owner to discuss the SUP conditions. At the meeting, the property owner represented that the Impound Lot use would be relocated and a state permit would be obtained for the new location within 90 days. The property owner was contacted as the 90 day deadline approached regarding the status of relocating the impound lot to an alternate site. According to the property owner they had been trying to contact Nana Appiah and Brian Lockley who initially managed the SUP conditions (both of whom no longer work with the City) and that the impound lot had not been relocated due to the weather constraints. According to the property owner, they would continue to work on relocating the Impound Lot use and as soon as it had been relocated they will communicate with staff. On August 24, 2015, after determining that the impound lot had not been relocated staff notified the property owner via a letter stating that the 90 days grace period agreed upon to relocate the Impound Lot use at the subject property had expired and the property owner is now out of compliance with the conditions of the SUP. In the letter, the property owner was asked to relocate the Impound Lot use or comply with all the conditions listed in the ordinance within 30 days from the date of the letter. After receiving the letter, the property owner met with staff and (re)discussed the conditions of the SUP. Staff explained that in addition to providing fencing and buffering along the perimeter of the site, the property owner also needed to provide best management practices (BMPs) to address the documented contamination determined to be exiting from the subject property. On August 28, 2015, the property owner submitted a fence permit (1508- 0764). Since then there have been two reviews of the fence permit, and staff is waiting for revisions to be resubmitted. The property owner has also hired GEES engineering to prepare a plan to provide BMPs. GEES Engineering has been working with the Environmental Services Department to develop a suitable proposal for BMPs. As of this writing, staff has not yet received a permit application submittal for the proposed BMPs. Pursuant to Section 35.6.6.13 of the Denton Development Code, a SUP may be revoked or modified, after notice to the property owner and a hearing before the City Council, for either the following reasons: 1. The SUP was obtained or extended by fraud or deception; or 2. That one or more of the conditions imposed by the permit has not been met or has been violated. Ordinance 2014 -240, Section 2, Condition 42, states, "If the City documents contamination from the subject property, the applicant shall either: (1) install BMPs...; or (2) lose the SUP and cease doing business at the property." After the SUP was approved, staff immediately implemented a monitoring program and documented that contamination was exiting the property. Attached is an Informal Staff Report that describes the results of the monitoring program. In addition, Ordinance 2014 -240, Section 2, Condition 44, states, "The applicant shall construct a screening fence and type "B" buffer within 60 days after approval of the SUP." Currently the property owner has been working with staff to address the conditions imposed by the SUP, however, as of this writing no BMPs have been installed and no screening fence or buffer has been constructed. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. City of Denton Page 2 of 3 Printed on 11/12/2015 File #: ID 15 -1073, Version: 1 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION Staff recommends approval of the ordinance revoking the Specific Use Permit. PRIOR ACTION/REVIEW (Council, Boards, Commissions) March 19, 2014 - Planning and Zoning Commission Public Hearing August 5, 2014 - City Council Public Hearing December 2, 2014 - City Council Public Hearing EXHIBITS 1. Ordinance 2014 -240 2. Akers Towing Timeline 3. Akers Towing Letter dated August 24, 2015 4. Informal Staff Report No. 2014 -087 5. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Ron Menguita, AICP Long Range Planning Administrator City of Denton Page 3 of 3 Printed on 11/12/2015 s: \legal \our documents \ordinances \14 \ordinance for s12 -0001 akers -as approved by mdocx RD 40 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING A SPECIFIC USE PERMIT TO ALLOW WRECKER SERVICES AND IMPOUND LOTS ON A PROPERTY LOCATED IN AN EMPLOYMENT CENTER INDUSTRIAL (EC -I) ZONING AND USE DISTRICT ON APPROXIMATELY 1.3 ACRES. THE SUBJECT PROPERTY IS GENERALLY LOCATED SOUTH OF SMITH STREET, EAST OF DALLAS DRIVE, AND NORTH OF TEASLEY LANE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS, THEREOF, SEVERABILITY AND AN EFFECTIVE DATE. (512 -0001) WHEREAS, Gloria Akers has applied for a Specific Use Permit to allow wrecker services and impound lots on approximately 1.03 acres, legally described in Exhibit "A ", attached hereto and incorporated herein by reference (the "Property "); and WHEREAS, on March 19, 2014, the Planning and Zoning Commission concluded a public hearing as required by law, and recommend approval of the Specific Use permit with conditions of approval; and WHEREAS, on August 5, 2014, the City Council conducted a public hearing as required by law; and WHEREAS, at the public hearing, the Applicant presented to the City Council its arguments against having to install stormwater quality management practices applicable to Wrecker Services and Impound Lots as required by Limitation 29 ( "L(29) ") of Section 35.5.8 of the Denton Development Code; and WHEREAS, the City Council was persuaded by the Applicant's arguments, and determined that Applicant did not have to install a stormwater quality management system, unless City Staff documents contamination exiting from the Property into the watershed; and WHEREAS, the City Council finds that the Specific Use Permit is consistent with the Denton Plan and the 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. A Specific Use Permit to allow wrecker services and impound lots on the Property is hereby approved, subject to the following conditions: 1. The site plan as submitted and shown in Exhibit `B" and "C" shall guide the operation of the use of the property for wrecker services and impounds lots. 2. Best management practices (BMPs) addressing stormwater quality shall not be required unless there is documented contamination. City Staff is directed to implement a monitoring program to determine whether any contamination is exiting the Property and into the watershed. If City Staff documents such contamination, the Applicant shall either: (1) install BMPs designed to treat hydrocarbons and attain the pollutant removal capabilities recommended for parking areas in the Integrated Storm Water Management (iSWM) Manual, as published by the North Central Texas Council of Governments, or similar practices consistent with low impact development (LID) approaches, so that the Applicant can be in compliance with the Denton Development Code's L(29) requirement; or (2) lose the SUP and cease doing business at the Property. The applicant shall install an eight -foot (8') high screening fence and a type "B" buffer along the perimeter of the site. The landscaping shall be planted along the outside of the fence, and shall be irrigated and kept alive at all times. Material for the construction of the screening fence shall be made of wood or other opaque materials. 4. The applicant shall construct the screening fence and type `B' buffer within 60 days after approval of this SUP. The screening and type `B' buffer shall be maintained at all times for continual use of the property for wrecker services and impound lots. 5. The SUP shall expire when the Applicant, Akers Towing Company, under ownership of the Akers family, ceases its business covered by this SUP. SECTION 3. The Specific Use Permit site plan attached hereto and incorporated herein by reference as Exhibit "B" and "C", is hereby approved, as an additional condition of the permit. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. 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 2014, 01Z 1S WATTS, MAYOR APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Exhibit "A" (Legal Description) 715 Dallas Drive 1.28 Acres FIELD NOTES to all that certain lot, tract, or parcel of land situated In the A Hill Survey, Abstract Number 523, Denton County. Texas, and being all of a tract of land described In a deed from Antone P Raposa to Jane Hoyt Akers, as recorded In Volume 849, Page 454, Deed Records, Denton County, Texas, also being a part of Lots 3 and 4 in the Emily J. Fry Estate, according to the plat thereof recorded In Volume 1, Page 313, Piet Records, Denton County. Texas, tart subject tract being morn perficulady described as follows; BEGINNING at a metal fence carrier post found for the most Northerly Northwest comer of the herein described tract, the most Northerly Northwest comer of said Akers tract and the Northeast corner of Lot 1 in Block A of Dolux Addition, an addition to the City of Denton, according to the plat thereof recorded In Cabinet S, Page 327, Plat Records, Denton County, Texas; THENCE South 89 degrees 40 minutes 47 seconds East with the North line of said Akers tract, along or near a fence, at a distance of 267,29 feet passing a capped iron rod found stamped '4501 for the Southeast corner of a tract of land described in a deed to F&H Construction, as recorded In County Clerk Fite Number 2002. 70921. Beal Property Records, Denton Counly, Texas, conilnuing along said course, a total distance of 2619.48 feet to a capped iron rod set for The Northeast comer of said Akers tract and being in the East lime of said Lot 4, the West Ilne of Lot t in said Emily J Fry Estate and the West llrie of a tract of land described in a deed to David Matheson, as recorded in County Clerk file Number 1994. 13414, Real Property Records, Donlon County, Texas, from which a 112" iron rod found for the Northwesl Comer thereof and the Northwest corner of said Lot 1 bears North 00 degrees 11 minutes 27 seconds West, a distance of 385.44 feet; THENCE South 00 degrees 11 minutes 27 seconds East with the West line of said Lot 1, the West line of said Matheson tract, the East line of sold Lot 4 and the East line of said Akers tract, a distance of 184.35 feet to a capped Iron rod set for the Southeast corner thereof in the West line of Lot 2 In sold Enilly J. Fry Estate, and being the apparent Northeast corner of Lot 1 In Block A of Reynolds Dallas Drive Addition, an addition to the City of Denton, according to itre plat thereof recorded In Cabinet E, Page 287, Plat Records, Denton County, Texas, From which a metal lance corner post found for art angia point In the East line thereof, the Southwest corner cif said Lot 2 and the Southwest comer of said Matheson tract bears South 00 degrees 11 minutes 27 seconds East, a distance of 88.77 feel; THENCE North 89 degrees 57 minutes 29 seconds West with the apparent North line of said Raynoids Dallas Drive Addition and the South line of said Akers tract, a distance,, of 282.52 feet to a capped Iran rod set on tea Northeast lino of Dallas Drive for t to Southwest corner thereof and the apparent Northwest corner of said Reynolds Dallas Drive Addition, fnzm which a 112" iron rod found fur the Southeast comer thereof bears South 47 degrees 57 minutes 33 seconds East, a distance of 383.71 feet, THENCE North 47 degrees 57 minutes 33 seconds West with the Northeast line of said Dallas Drive and a Southwest line of said Akers tract, a distance of 1313.87 feet to a PK nail set for the most Westerly Northwest corner Ilsiroof and the Southwest comer of a 0 „31 acra rlghf -of -Wry deotration found In said CaNnot S, Page 322, from which a PK nail found for an angles Point on ft West the of beers North 47 degrees 67 minutes 33 SeMnrin Was I, a distance of 18.77 feet; THENCE South 89 degrees 47 minutes 48 seconds East with the North fine of said Akers tract, at a distance of 10.00 feet pcoawng the Srs Irwast comer of Lot 1 in said Delux Addition, continuing along uaid ccurpo and lbe South line of said Lot 1, a distance of 115.48 feet to a metol Ponce comer post found for the ucutheast comer Ihereol and an Inner ell comer of sold Akers Iract; V. 01. - :, I e'� a 4F A .ITA! 3 ETTN"N'R OCK � Si2a3 ,�;., 98 v �-=, Mrarl, 01 Te- ZT, Exhibit "C" Landscape Plan "UT 0 M ... . .......... . .......... . W Akers Towing Timeline On August 9, 1978, Akers Towing received their original Certificate of Occupancy (CO) for use as an "Automotive Store" with the use "Auto Repair" hand printed on the CO. • The subject property was designated as a Commercial zoning district in 1978. Per the City of Denton 1969 Zoning Ordinance, the Ordinance regulating land use, auto wrecking or salvage yard were prohibited in the Commercial zoning district. • According to the property owner, since that time the property was used for auto repair and towing /wrecker service. • After the original CO was issued, several other COs were issued for uses related to automotive service. • May 7, 1986, a CO was issued for automobile paint and body shop. • April 5, 1988, a CO was issued for auto body repair. • August 9, 1989, a CO was issued for auto repair and refinish. • April 15, 1999, a CO was issued for auto paint and body repair. • March 4, 2002, a CO was issued for auto storage (no wrecker or towing were authorized with the issuance of the CO). On May 5, 2009, City Council approved an Ordinance (2009 -115) specifying zoning districts allowing wrecker services and impound lots and providing a definition. • Akers Towing initial operations included auto repair and towing associated with the principal use. When they expanded to include state licensed towing, storage facility, and storage of other vehicles, the use became non - compliant because the use was prohibited. Currently the Denton Development Code defines the current use of Akers Towing as Wrecker Services and Impound Lot. Per the Denton Development Code property zoned EC -I, Wrecker Services and Impound Lots are required to obtain an Specific Use Permit and are subject to limitation L(29). On October 14, 2010, Code Enforcement opened a case by complaint. The complaint was for the operation of an auto repair /auto body shop without a CO for 717 Dallas Drive. On December 14, 2010, the property owner applied for a CO for 717 Dallas Drive as an expansion of their business on 715 Dallas Drive. On February 17, 2011, the case was closed. The CO was never issued because the application was withdrawn due to the need of a Specific Use Permit. Page - 1 On April 3, 2012, the property owner submitted an application for a Specific Use Permit (S12-0001). On August 21, 2012, Code Enforcement opened a case by complaint. The complaint was for operating a business without a CO, parking on unimproved surface, and tall grass /weeds. On September 12, 2012, Code Enforcement opened a new case by complaint. The complaint was for inoperable vehicles and outside storage. On October 4, 2012, Code Enforcement opened a new case by complaint. The complaint was for no sign permit and trash and debris. On November 9, 2012, citations were issued for all the cases opened. No citation was issued for the no CO for the Wrecker Services and Impound Lot use as staff is working with the property owner on obtaining a Specific Use Permit. 0 January 14, 2013, the property owner submitted another CO application. 0 January 29, 2013, the property owner cancelled the CO application. 0 On August 5, 2013, the DRC release the SUP to move forward for consideration. On March 19, 2014, Planning and Zoning Commission held a public hearing and recommended approval of the SUP request subject to conditions. On July 15, 2014, City Council held a public hearing. At that meeting, the applicant requested that this public hearing item be opened and continued to the August 5, 2014, City Council meeting. This request was to allow the application to move forward without staff having to re- notice the property. On August 5, 2014, City Council held a public hearing approval of this request subject to conditions. Refer to Ordinance 2014 -240. On October 24, 2014, the City Council received an Informal Staff Report regarding an update on the SUP approved for Akers Towing (S12-0001). The Informal Staff Report informed Council of a recent communication that indicated the Akers objected to the construction of an 8' screening fencing as required in the SUP approved by Council. On November 14, 2014, the City Council received an Informal Staff Report regarding an update on the SUP Approved for Akers Towing (S 12 -0001) regarding site sampling. Page - 2 On November 18, 2014, the property owner submitted anew application (ASUP14 -0001) requesting that the SUP (S 12 -0001) conditions be amended. On December 2, 2014, the City Council directed staff to enforce the conditions imposed on the SUP as approved. On December 17, 2014, a meeting with the property owner and representatives from the Planning and Environmental Services Department was held to discuss the SUP conditions. At the meeting, it was agreed that the Impound Lot use was going to be relocated and a state permit will be obtained for the new location within 90 days of the subject meeting date. On March 31, 2015, staff spoke to Gloria Akers regarding the status of moving the impound lot offsite. According to Ms. Akers she has been trying to get a hold of Nana and Brian and that the impound lot has not been moved due to the weather. According to Ms. Akers, she is working on moving the use and as soon as it has she will contact staff. On August 24, 2015, staff sent a letter to the applicant asking that they relocate the Impound Lot use or comply with all the conditions listed in the ordinance 30 days from the date of this letter. 0 On August 28, 2015, the applicant submitted an application for a fence permit (1508- 0764). On September 11, 2015, DRC comments regarding the fence permit were sent to the applicant. 0 On September 18, 2015, the applicant resubmitted revisions for fence permit. 0 On October 5, 2015, DRC comments regarding the fence permit were sent to the applicant. On September 21, 2015, staff received a Memorandum from GEES Engineering requesting clarification on the Informal Staff Report dated November 14, 2014. Specifically clarification on the test results. Page - 3 -1114 DENTON 221 N. Elm ■ Denton, Texas ■ 76201 ■ 940 - 349 -8541 ■ fax 940 - 349 -7707 Planning and Development Department August 24, 2015 Akers Towing 715 Dallas Drive Denton, TX 76205 SUBJECT: Akers Towing - 715 Dallas Drive Akers Towing: The purpose of this letter is to inform you that the 90 days agreed to relocate the Impound Lot use at the subject property has expired. In December 17, 2014, a meeting with you and representatives from the Planning and Environmental Services Department was held to discuss the Specific Use Permit (SUP) conditions. At the meeting, it was agreed that the Impound Lot use was going to be relocated and a state permit will be obtained for the new location within 90 days of the subject meeting date. Currently, the Impound Lot use has not been relocated and is out of compliance with the SUP approved on August 5, 2014. Attached is a copy of the ordinance for the SUP that contains the subject conditions. We ask that you relocate the Impound Lot use or comply with all the conditions listed in the ordinance 30 days from the date of this letter. If you have any questions please do not hesitate to contact me at (940) 349 -8328. Sincerely, PQC4�1 �- Ron Menguita DRC Administrator CC: Munal Mauladad Kenneth Banks Deborah Viera Attachment: Ordinance 2014 -240 "Dedicated to Quality Service" www. cityofdenton. coin Date: November 14, 2014 INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT Report No. 2014 -087 Update on the Specific Use Permit Approved for Akers Towing (S12-0001) regarding site sampling BACKGROUND On October 24, 2014, the City Council received an Informal Staff Report (ISR 2014 -079) regarding an update on the Specific Use Permit (SUP) Approved for Akers Towing (S12-001). The ISR informed Council of a recent communication that indicated the Akers objected to the construction of an 8' screening fencing as required in the SUP approved by Council. The update also addressed condition 42 of the SUP that required the collection of samples for testing that would indicate whether the stormwater BMP should be constructed on the Akers Property as originally recommended by staff. The monitoring has been completed by City staff pursuant to condition 42 of the SUP and is summarized below. SUP Condition 92 Best management practices (BMPs) addressing stormwater quality shall not be required unless there is documented contamination. City Staff is directed to implement a monitoring program to determine whether any contamination is exiting the Property and into the watershed. If City Staff documents such contamination, the Applicant shall either: (1) install BMPs designed to treat hydrocarbons and attain the pollutant removal capabilities recommended for parking areas in the Integrated Storm Water Management (iSWM) Manual, as published by the North Central Texas Council of Governments, or similar practices consistent with low impact development (LID) approaches, so that the Applicant can be in compliance with the Denton Development Code's L(29) requirement; (2) or lose the SUP and cease doing business at the Property. MONITORING SUMMARY Pursuant to condition 42, the City's Environmental Services and Sustainability Department collected soil samples of the property south and east of the site. The purpose of this sampling effort was to collect and analyze soils adjacent to the property line to determine if contaminants appeared to be leaving the site. Since the property generally drains to the south and to the east, sampling was conducted in these areas. Sample locations were established using the U.S Department of Energy's Visual Sampling Plan software program (Figure 1). A total of 12 sampling locations were identified and sampled on September 23, 2014. Samples were collected in accordance with United States Environmental Protection Agency (USEPA) protocol (U. S. EPA Environmental Response Team, Standard Operating Procedures, 2012: Soil Sampling), using containers and preservatives as specified in the various laboratory methods and appropriate field quality assurance and quality control. Samples were analyzed for metals using USEPA Method 200.8, BTEX (benzene, toluene, ethlybenzene, and xylene) using EPA Method Date: November 14, 2014 Report No. 2014 -087 8260B, and total petroleum hydrocarbons (TPH) using TX Method 1005. Analyses for metals were conducted by the City of Denton Municipal laboratory, and analyses for BTEX and TPH were performed by Ana -Lab Corporation, an environmental testing laboratory. Figure 1. Sampling locations Laboratory results are summarized in Tables 1 and 2. Many of the sampled metals did not exceed Texas - specific soil background concentrations, although zinc and lead consistently exceeded background concentrations. Lead concentrations in all soil samples also exceed the Texas Risk Reduction Program (TRRP, as found in 30TAC350) Protective Concentration Levels (PCLs) for the soils to groundwater ingestion exposure pathway. The PCL GwSoilh g for lead (Pb) is 3.0 mg/Kg. This would likely default to the Texas background level of 15 mg/kg for regulatory purposes, so only those values exceeding this background level are highlighted in Table 1. BTEX and TPH results show that BTEX was below detection limits for most samples, and was below all TRRP PCLs. However, The TRRP GwSoilh g PCL for C12 -C35 combined is 200 mg/Kg for residential soils and 590 mg /Kg for commercial industrial soils. 2 Date: November 14, 2014 Report No. 2014 -087 Unless a large amount of TPH in the site 2 sample is comprised of only 36 carbon atom molecules, site 2 likely exceeds the residential PCL value for C12 -C35 TPH CONCLUSION Overall, results indicate that metals and total petroleum hydrocarbons are likely leaving the facility in stormwater, particularly in the areas draining to Site 2. Staff has received a written request for Council reconsideration that is in process. After completion of the review, staff will schedule this item for a future Council meeting. ATTACHMENT Table 1. Metals results Table 2. BTEX and TPH results STAFF CONTACT Brian Lockley, AICP, CPM Director of Planning and Development 940 - 349 -8504 Brian. lockley2cityofdenton. com 3 t�A � O V' � M M O N � M OO V' N M !�! O� C. �O N a, � �; N o0 M O � 00 O C 00 M 00 �O 00 l� M 00 M OO �!7 M A-I � � � N ,-i � N •-� •-� N •-� •-� N U V Cl. U V V V V V V V V V V V V 01 00 M M M M M M 00 00 �O M M M p N O O O O O O O N N O O O O V V V V V V V � � O N � a, O �t � O_ � m o o � C O O O O O O O U O O O O O o v E V bA N O V� O � 3 � O O O O O O O O O O O O V V V V V V V V V V OCi O_ O_ O_ U � � U � V V V V V V V V V V V V V V U �n �n �n �n U �n � y � � O O O O O O O O O O O O O O V V V V V V V V V V V V V �O �t Q O O ti a1 � a1 � N � � 00 � k V' 00 N M �O M c}' N � � l� M � O � O �n �O � �t N U O N �r O� �O o0 O� O � N N N M M N M M t�A O O U N ' W ['^- a, M +ra M N x by N � � '� fJ1 ' M M \O N d' f�'. 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L!') L!') L!') Lf1 l0 l0 Lf1 Lf1 Lf1 Lf1 Lf1 Lf1 Lf1 � V V V V V V V V V V V V V O v � O O co � N O � dA by w � O N � N � l� 00 M 00 M 00 C� O O O � � O .-� 00 O O � � II G ci c-i N N N N N N N c-I N N c-I c-I N v� V V V V V V V V V V V V V V M N N \ U Q y H co N O 4-. U � p U U CIS tb O � t N C37 y � U � v � 00 O� C:A Users \106681\AppData \Local \Microsoft\Windows \Temporary Internet Files\ Content. Outlook \GZFMAB8V \Ordinance_revocation of S[JP.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, CONSIDERING THE REVOCATION OF A SPECIFIC USE PERMIT DATED AUGUST 5, 2014, WHICH ALLOWED A WRECKER SERVICE AND IMPOUND LOT ON PROPERTY LOCATED IN AN EMPLOYMENT CENTER INDUSTRIAL ZONING AND LAND USE DISTRICT (EC -1) ON APPROXIMATELY 1.3 ACRES OF LAND, GENERALLY LOCATED SOUTH OF SMITH STREET, EAST OF DALLAS DRIVE AND NORTH OF TEASLEY LANE; PROVIDING FOR A REPEALER OF ORDINANCE 2014 -240; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Joe H. Akers ( "Owner ") owns approximately 1.3 acres of land located at A0623a A. Hill Abstract, Tr 77, and more commonly known as 715 Dallas Drive, within the City of Denton, Denton County, Texas (the "Property "), which is zoned as an Employment Center Industrial Zoning and Land Use District (EC -1); and WHEREAS, the Owner operates a wrecker service and impound lot on the Property under the business Akers "Towing LLC; and WHEREAS, the Denton Development Code, Section 35.5.6.2 requires a Specific Use Permit for such use in an EC -1 district, as well as a Limitation 29 ( "L(29) ") of Section 35.5.8; and WHEREAS, after Owner filed a request for SUP and objected to the application of L(29), the City Council, on August 5, 2014, approved Ordinance 2014 -240 granting a Specific Use Permit (SUP) to allow Wrecker Services and Impound Lots on the Property and required several conditions to be met, including that an eight -foot (8') high screening fence and a type "B" buffer be placed along the perimeter of the site, and that if contamination is found by City Staff to be exiting the Property and into the watershed, then Best Management Practices would be required in accordance with L(29) or the SUP would be lost; and WHEREAS, in September 2014, City Staff completed monitoring of the Property for contamination by testing various soil samples which confirmed that metals and total petroleum hydrocarbons were likely exiting the Property in storm water; and WHEREAS, the City Council of the City of Denton hereby finds that Owner has failed to install Best Management Practices designed to treat hydrocarbons and attain the pollutant removal capabilities in accordance with L(29), and has failed to install an eight -foot (8') high screening fence and a type "B" buffer along the perimeter of the site and therefore conditions imposed by the SUP have not been met or have been violated; and WHEREAS, at a hearing on the matter and after due notice to owner City Council finds that revocation of the SUP and repeal of Ordinance 2014 -240 pursuant to Section 35.6.6.B.2. of the Denton Development Code is in the best interest of the citizens of the City of Denton to promote the public health, safety, morals, and general welfare of the City; NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The City Council hereby revokes the Specific Use Permit approved for the Property on August 5, 2014 and hereby repeals Ordinance No. 2014 -240. SECTION 3. The zoning ordinances of the City of Denton shall remain in full force and effect, save and except as amended by this ordinance. SECTION 4. The Owner, Akers Towing LLC, or its principals, agents, representatives, or employees shall immediately cease from using the Property as a Wrecker Service and Impound Lot The Rnilding Official is hereby directed to revoke the Certificate of Occupancy for this location. SECTION 5. 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 other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY , APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 15 -1107, Version: 1 Agenda Information Sheet SUBJECT Willie Hudspeth regarding City Hall. City of Denton Page 1 of 1 Printed on 11/12/2015