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February 02, 2016 Agenda
to�ut!tPltl �'� � k, Tuesday, February 2, 2016 City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com 4:30 PM Work Session Room & Council Chambers After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, February 2, 2016 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. Citizen Comments on Consent Auenda Items This section of the agenda allows citizens to speak on Consent Agenda Items only. Each speaker will be given a total of three (3) minutes to address any items he /she wishes that are listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers this item. 2. Requests for clarification of agenda items listed on the agenda for February 2, 2016. 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 16 -094 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 generally south of the 2400 Block of Shady Oaks Drive, in the Mary Austin Survey, Abstract number four, in the City of Denton, Denton County, Texas; where discussion 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. [Brinker Substation] B. ID 16 -137 Deliberations regarding Real Property - Under Texas Government Code, Section 551.072; and Consultation with Attorneys - Under Texas Government Code, City ofDenton Page I Printed on 112812016 City Council Meeting Agenda February 2, 2016 Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the J. White Survey, Abstract 1433 and generally in the 3100 block of Colorado Boulevard, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential 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. (Fire Department) C. ID 16 -163 Consultation with Attorneys - Under Texas Government Code Section 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. D. ID 16 -182 Deliberations Regarding Real 551.072; Consultation with 551.071. E. ID 16 -183 Property - Under Texas Government Code Section Attorneys - Under Texas Government Code Section Receive information from staff, discuss, deliberate and provide staff with direction regarding the potential acquisition, exchange, lease or value of real property located generally in the 200 block of West Hickory and the 200 Block of West Mulberry in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consultation, discussion, deliberation and receipt of information from the City's attorneys involving legal matters relating to the annexation or extension /renewal of non - annexation agreements for eligible properties, and to provide the City's attorneys with direction, where a public discussion of these legal matters would clearly 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. City ofDenton Page 2 Printed on 112812016 City Council Meeting Agenda February 2, 2016 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071- 551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS /PRESENTATIONS A. ID 16 -134 Go Red for Women 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 16 -088 Gricelda Samano regarding a sign ordinance issue at 602 E. McKinney Street. 2. ID 16 -116 Chole Terrell regarding the safety of Bell Avenue. 3. ID 16 -170 Pat Smith regarding letter of commendation for Denton Police Dept. from Denton Bible Church. 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 items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — T). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are City ofDenton Page 3 Printed on 112812016 City Council Meeting Agenda February 2, 2016 pulled, Consent Agenda Items A — T below will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. A. ID 16 -083 Consider adoption of an ordinance ordering an election to be held in the City of Denton, Texas on May 7, 2016 and, if a runoff election is required on June 18, 2016 for the purpose of electing Council Members to Places 5 and 6 and electing a Mayor to Place 7 of the City Council of the City of Denton, Texas; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an Open Meetings clause; and providing an effective date. Attachments: Exhibit 1 - Ordinance B. ID 16 -084 Consider adoption of an ordinance ordering a Recall Election to be held in the City of Denton, Texas, on May 7, 2016 for the purpose of determining whether City Council Member Joey Hawkins shall be removed from District 4 of the City Council of the City of Denton, Texas by recall; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an Open Meetings clause; and providing an effective date. Attachments: Exhibit 1 - Ordinance C. ID 16 -099 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the renovation of an existing pre- engineered metal building located at 651 South Mayhill Road for the City of Denton Solid Waste Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5866- awarded to Links Construction, LLP in the amount of $522,743). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Pricing and Evaluation Sheet Exhibit 2 -PUB Minutes Exhibit 3- Ordinance D. ID 16 -100 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 architectural, structural, mechanical, and electrical design services in support of the design of the new City of Denton Household Chemical Collections Facility to be located at 1527 South Mayhill Road; providing for the expenditure of funds therefor; and providing an effective date (File 5906 awarded to Nelson+ Morgan Architects, Inc. in the not -to- exceed amount of $239,935). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Public Utilities Board Minutes Exhibit 2- Ordinance Exhibit 3- Professional Services Agreement E. ID 16 -101 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a First Amendment to a Professional Services Agreement by and between the City of Denton, Texas and Resolved Energy Consulting, LLC, for City ofDenton Page 4 Printed on 112812016 City Council Meeting Agenda February 2, 2016 services relating to Denton Municipal Electric projects that include without limitation, Electric Reliability Council of Texas (ERCOT), Public Utilities Commission of Texas (PUCT), and other regulatory activities respecting the City of Denton's Electric Utility; authorizing the expenditure of funds therefor; providing an effective date (File No. 5332 in the additional amount not -to- exceed $520,000; aggregating a total not -to- exceed $1,040,000). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Public Utilities Board Minutes Exhibit 2- Ordinance With Amendment F. ID 16 -103 Consider adoption of an ordinance of the City of Denton, Texas approving the sale of (1) an approximate 2.902 acre tract of land, and (ii) an approximate 24.293 acre tract of land, both being situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas, to the successful bidder, Atmos Energy Corporation, a Texas and Virginia corporation for the total consideration of $1,244,668.00; authorizing the City Manager to execute a Contract of Sale between City of Denton, ( "Owner ") and Atmos Energy Corporation (`Buyer "), further; in accordance with Texas Local Government Code 253.001, to execute a deed to Atmos Energy Corporation, together with any other documents necessary to sell and convey said real property; and providing and effective date (Bid 5994 -Sale of Real Property Located in Pecan Creek Area). Attachments: Exhibit 1- Location Map Exhibit 2 -Site Map Exhibit 3- Ordinance with Contract G. ID 16 -104 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility pad- mounted switchgears to be stocked in the City of Denton Distribution Center; providing for the expenditure of funds therefor; and providing an effective date (RFP 5985- awarded to Anixter Power Solutions in the three (3) year not -to- exceed amount of $6,000,000). Attachments: Exhibit 1- Evaluation and Ranking Sheet Exhibit 2- Ordinance Exhibit 3- Contract H. ID 16 -106 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for tree trimming services for Denton Municipal Electric (DME); providing the expenditure of funds therefor; and providing an effective date (RFP 5991 - Electric Utility Line Tree Trimming Services awarded to ABC Professional Tree Services, Inc., in a three (3) year not -to- exceed amount of $3,849,256.50). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1- Pricing and Evaluation Sheet Exhibit 2- Public Utilities Board Minutes Exhibit 3- Ordinance Exhibit 4- Contract L ID 16 -113 Consider approval of the minutes of October 30, November 2, November 10, and City ofDenton Page 5 Printed on 112812016 City Council Meeting Agenda February 2, 2016 November 17, 2015. Attachments: Exhibit 1 - October 30. 2015 minutes Exhibit 2 - November 2. 2015 minutes Exhibit 3 - November 10. 2015 minutes Exhibit 4 - November 17. 2015 minutes J. ID 16 -115 Consider adoption of an ordinance adopting the Denton County, Texas Hazard Mitigation Action Plan (HazMAP), of which the City of Denton is a party, and providing for an effective date. Attachments: Exhibit 1 Ordinance 2011 -078 Exhibit 3 TDEM APA Notice Letter Exhibit 4 Ordinance K. ID 16 -118 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $5,700 of in -kind services and resources for the 31st Annual Texas Storytelling Festival to be held in the Civic Center located at 321E. McKinney Street from March 10 -13, 2016; and providing an effective date. Attachments: Exhibit 1 - Letter of Request Exhibit 2 - 2015 Proposed Costs versus Actual Costs Exhibit 3 - 2015 -16 Running Total of Requested Support Exhibit 4 - Proposed Ordinance L. ID 16 -122 Consider adoption of an ordinance approving a contract for a three (3) year comprehensive service plan for maintenance and tuning of the City of Denton Municipal Laboratory Perkin Elmer Inductively Coupled Plasma Mass Spectrometer which is available from only one source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 6047 - awarded to PerkinElmer Health Sciences, Inc. in the three (3) year not -to- exceed amount of $87,937.30). The Public Utilities Board recommends approval (6 -0). Attachments: Exhibit 1 -Quote Exhibit 2- Vendor Sole Source Letter Exhibit 3 -Sole Source Memo Exhibit 4- Public Utilities Board Minutes Exhibit 5- Ordinance Exhibit 6- Contract M. ID 16 -136 Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment No. 003 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $436,470.09; 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 City ofDenton Page 6 Printed on 112812016 City Council Meeting Agenda February 2, 2016 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 UAAA 003 020216 Exhibit 2 - UAAA 003 020216 N. ID 16 -172 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for a Compensation and Classification Study for non -civil service City of Denton employees; providing for the expenditure of funds therefore; and providing an effective date (RFP 5972- awarded to Ulibarri -Mason Global HR, LP in a not -to- exceed amount of $124,087.80). Attachments: Exhibit 1- Evaluation and Ranking Sheet Exhibit 2- Ordinance Exhibit 3- Contract O. ID 16 -179 Consider adoption of an ordinance of the City of Denton, Texas approving a Building Lease Agreement between the City of Denton and 4SR Mulberry, LLC, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. Attachments: Exhibit 1 - Building Lease Exhibit 2 - Building Lease Ordinance P. ID 16 -180 Consider adoption of an ordinance of the City of Denton, Texas approving a Subordination, Non - Disturbance and Attornment Agreement between the City of Denton, 4SR Mulberry, LLC, and the National Bank of Texas at Fort Worth, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. Attachments: Exhibit 1 - SNDA Final Exhibit 2 - SNDA Ordinance Q. ID 16 -181 Consider adoption of an ordinance of the City of Denton, Texas approving a Right of First Refusal between the City of Denton and 4SR Mulberry, LLC, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. Attachments: Exhibit 1 - Riaht of First Refusal - FINAL Exhibit 2 - Ordinance Right of First Refusal R. ID 16 -186 Consider adoption of an ordinance of the City of Denton, Texas setting dates, times, and place for public hearings on the proposed annexation of certain property by the City of Denton, Texas, authorizing and directing the City Secretary to publish notice City ofDenton Page 7 Printed on 112812016 City Council Meeting Agenda February 2, 2016 of such public hearings. Attachments: Exhibit 1- Ordinance on Public Hearings S. ID 16 -187 Consider adoption of an ordinance of the City of Denton finding and declaring a restriction contained in the 1933 deed between the lOOF and the City of Denton convening the said cemetery to the City of Denton prohibiting the use of the said cemetery for the burial of non -white persons to be illegal, unenforceable, unconscionable, contrary and repugnant to the philosophy, principals and beliefs of the City of Denton and that the said restrictive language shall not be enforced or recognized on any city -owned or managed property and providing an effective date. Attachments: Exhibit 1 Ordinance T. ID 16 -188 Consider adoption of an ordinance of the City of Denton, Texas providing authorization of an Interlocal Cooperation Agreement between the City of Denton, Texas ( "City ") and Denton County, Texas ( "County ") regarding the County's use of the City's dark fiber facilities; and providing for an effective date. Attachments: Exhibit 1 Ordinance /Agreement 5. PUBLIC HEARINGS A. Z15 -0027a 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) zoning district and use classification to a Community Mixed Use General (CM -G) zoning district and use classification on approximately 2.1 acres of land generally located at the southwest corner of West University Drive and Ector Street 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 -0027) The Planning and Zoning Commission recommended denial of this request (5 -0); therefore, in order to approve the request, a supermajority vote by City Council is required. This rezoning request was withdrawn by the applicant on January 25, 2016. City ofDenton Page 8 Printed on 112812016 City Council Meeting Agenda February 2, 2016 Attachments: Staff Analysis Location Map Zoning Map Future Land Use Map Permitted Uses in Neighborhood Residential Mixed Use Permitted Uses in Community Mixed Use General Denton Development Code General Regulations Site Plan Landscape Plan Elevations Architectural Renderings Site Photos Public Notification and Responses Planning and Zoning Commission Meeting Minutes Draft Ordinance B. Z15 -0032a Hold a public hearing and consider a request for rezoning to a Neighborhood Residential 4 (NR -4) District for three tracts of land generally located 1,500 feet south of the intersection of Kings Row and North Loop 288, in the City of Denton, Denton County, Texas. Tract 1 is approximately 1.3 acres in size and is currently zoned a Community Mixed Use General (CM -G) District. Tract 2 is approximately 1.08 acres in size and is currently zoned a Neighborhood Residential Mixed Use 12 (NRMU -12) District. Tract 3 is approximately 0.51 acres in size and is currently zoned a Neighborhood Residential 3 (NR -3) District. The Planning and Zoning Commission recommends approval of this request (5 -0). Attachments: Staff Analysis Site Location Zoning Map Future Land Use Map Zoning Exhibit Applicant Narrative NR -4 Permitted Uses Notification Map Planning & Zoning Commission Meeting Minutes Draft Ordinance 6. 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 16 -108 Willie Hudspeth regarding City Hall. City ofDenton Page 9 Printed on 112812016 City Council Meeting Agenda February 2, 2016 7. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. 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 , 2016 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM AND COUNCIL CHAMBERS ARE 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 10 Printed on 112812016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -094, 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 generally south of the 2400 Block of Shady Oaks Drive, in the Mary Austin Survey, Abstract number four, in the City of Denton, Denton County, Texas; where discussion 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. [Brinker Substation] City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -137, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code, Section 551.072; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the J. White Survey, Abstract 1433 and generally in the 3100 block of Colorado Boulevard, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential 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. (Fire Department) City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -163, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code Section 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. City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -182, 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, exchange, lease or value of real property located generally in the 200 block of West Hickory and the 200 Block of West Mulberry in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -183, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consultation, discussion, deliberation and receipt of information from the City's attorneys involving legal matters relating to the annexation or extension/renewal of non - annexation agreements for eligible properties, and to provide the City's attorneys with direction, where a public discussion of these legal matters would clearly 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. City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 16 -134, Version: 1 Agenda Information Sheet SUBJECT Go Red for Women City of Denton Page 1 of 1 Printed on 1/27/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 16 -088, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Gricelda Samano regarding a sign ordinance issue at 602 E. McKinney Street. City of Denton Page 1 of 1 Printed on 1/27/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -116, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Chole Terrell regarding the safety of Bell Avenue. City of Denton Page 1 of 1 Printed on 1/27/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 16 -170, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Pat Smith regarding letter of commendation for Denton Police Dept. from Denton Bible Church. City of Denton Page 1 of 1 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -083, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Secretary's Office CM/ ACM: Bryan Langley Date: February 2, 2016 SUBJECT Consider adoption of an ordinance ordering an election to be held in the City of Denton, Texas on May 7, 2016 and, if a runoff election is required on June 18, 2016 for the purpose of electing Council Members to Places 5 and 6 and electing a Mayor to Place 7 of the City Council of the City of Denton, Texas; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an Open Meetings clause; and providing an effective date. BACKGROUND Approval of this ordinance would formally call the May 7, 2016 City Council election. It also indicates that the City will be entering into an election agreement with the Denton County Elections Administrator to perform various election functions. The contract will be a "full service" joint election agreement with the jurisdictions within Denton County. Denton County will be responsible for conducting the May election similar to elections held the past several years. As with prior elections, City of Denton voters will not notice any difference in polling locations on Election Day as the County will be using the City's standard Election Day locations at the MLK Recreation Center, North Branch Library, North Lakes Recreation Center and Denia Recreation Center. Early Voting in Denton will be conducted at the Denton County Elections Administration Building located at 701 Kimberly Drive with some early voting at City Hall. Voting at City Hall is a change from prior years as the Civic Center is not available due to the Arts and Jazz Fest. The date of the May election was moved this legislative session from the second Saturday in May to the first Saturday in May. This change also moved Early Voting up a week which now is the week that the Arts and Jazz Fest rents the entire Civic Center for the week preceding the festival. It was felt that it was important to maintain a voting location near the Civic Center for ease of voters plus a location that had adequate parking. After careful consideration, City Hall was determined to be the best location. Once the County determines how many entities will be participating in the joint agreement, a detailed cost analysis will be available. City of Denton Page 1 of 2 Printed on 1/27/2016 File M ID 16 -083, Version: 1 EXHIBITS Exhibit 1 - Ordinance Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 2 of 2 Printed on 1/27/2016 s:\legal \our documents \ordinances \16 \election calling 050716.doc ORDINANCE NO. AN ORDINANCE ORDERING AN ELECTION TO BE HELD IN THE CITY OF DENTON, TEXAS, ON MAY 7, 2016 AND, IF A RUNOFF ELECTION IS REQUIRED, ON JUNE 18, 2016, FOR THE PURPOSE OF ELECTING COUNCIL MEMBERS TO PLACES 5 AND 6 AND ELECTING A MAYOR TO PLACE 7 OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS; PRESCRIBING THE TIME AND MANNER OF THE CONDUCT OF THE ELECTION TO BE IN ACCORDANCE WITH AN AGREEMENT WITH THE ELECTION ADMINISTRATOR OF DENTON COUNTY; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN OPEN MEETINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. SECTION 1. A municipal election is ordered to be held in the City of Denton, Texas on Saturday, May 7, 2016, such date being a uniform election date as defined in Tex. Elec. Code §41.001, as amended (the "Code "), for the purpose of electing council members for Places 5 and 6 and electing a mayor to Place 7. In the event a runoff is required, the runoff election shall be held on Saturday, June 18, 2016. SECTION 2. The election and early voting shall be conducted at the time and in the manner specified in and in accordance with an agreement between the Election Administrator of Denton County and the City of Denton. SECTION 3. The manner of holding such election and all questions pertaining thereto shall be governed by the election laws of the State of Texas. SECTION 4. The City Council has found and determined that the meeting at which this Ordinance is considered is open to the public, and that notice thereof was given in accordance with provisions of the Texas open meetings law, Tex. Gov't. Code ch. 551, as amended, and that a quorum of the City Council was present. SECTION 5. This Ordinance shall become effective immediately upon its passage and approval. PRESENTED, PASSED AND APPROVED on the day of 2016 at a regular meeting of the City Council of the City of Denton, Texas, by a vote of ayes and nays at the regular meeting of the City Council of the City of Denton, Texas. _� PASSED AND APPROVED this the _ da y of 2016. CHRIS WATTS, MAYOR sAlegal\our documents \ordinances \1 Mclection calling 050716. doe ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -084, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Secretary's Office CM/ ACM: Bryan Langley Date: February 2, 2016 SUBJECT Consider adoption of an ordinance ordering a Recall Election to be held in the City of Denton, Texas, on May 7, 2016 for the purpose of determining whether City Council Member Joey Hawkins shall be removed from District 4 of the City Council of the City of Denton, Texas by recall; prescribing the time and manner of the conduct of the election to be in accordance with an agreement with the Election Administrator of Denton County; providing a severability clause; providing an Open Meetings clause; and providing an effective date. BACKGROUND On December 14, 2015 a petition seeking the Recall of City Council Member Joey Hawkins was filed with the City Secretary and was certified to be in compliance with the provisions of the City Charter on January 5, 2016. The Charter provides for a seven day period for Council Member Hawkins to resign after being notified of the sufficiency of the petition. That time period has passed with Council Member Hawkins not resigning. Per the Charter, Council is now required to order and fix a date for holding a recall election. Approval of this ordinance would formally call a May 7, 2016 recall election. It also indicates that the City will be entering into an election agreement with the Denton County Elections Administrator to perform various election functions. The contract will be a "full service" joint election agreement with the jurisdictions within Denton County. Denton County will be responsible for conducting the May election similar to elections held the past several years. As with prior elections, City of Denton voters will not notice any difference in polling locations on Election Day as the County will be using the City's standard Election Day locations at the MLK Recreation Center, North Branch Library, North Lakes Recreation Center and Denia Recreation Center. Early Voting in Denton will be conducted at the Denton County Elections Administration Building located at 701 Kimberly Drive with some early voting at City Hall. Voting at City Hall is a change from prior years as the Civic Center is not available due to the Arts and Jazz Fest. The date of the May election was moved this legislative session from the second Saturday in May to the first Saturday in May. This change also moved Early Voting up a week which now is the week that the Arts and Jazz Fest rents the entire Civic Center for the week preceding the festival. It was felt that it was important to maintain a voting location near the Civic Center for ease of voters plus a location that had adequate parking. After careful consideration, City Hall was determined to be the best location. City of Denton Page 1 of 2 Printed on 1/27/2016 File M ID 16 -084, Version: 1 Once the County determines how many entities will be participating in the joint agreement, a detailed cost analysis will be available. EXHIBITS Exhibit 1 - Ordinance Respectfully submitted: Jennifer Walters City Secretary City of Denton Page 2 of 2 Printed on 1/27/2016 S:Uxgalt , 4rdcring Rcenll doc ORDINANCE NO, AN ORDINANCE ORDERING A RECALL ELECTION TO BE HELD IN THE CITY OF DENTON, TEXAS, ON MAY 7, 2016 FOR THE PURPOSE OF DETERMINING WHETHER CITY COUNCIL MEMBER JOEY HAWKINS SHALL BE REMOVED FROM DISTRICT 4 OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS BY RECALL; PRESCRIBING THE TIME AND MANNER OF THE CONDUCT OF THE ELECTION TO BE IN ACCORDANCE WITH AN AGREEMENT WITH THE ELECTION ADMINISTRATOR OF DENTON COUNTY; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN OPEN MEETINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on or about December 14, 2015, a petition seeking the Recall of City Council Member Joey Hawkins was filed with the City Secretary; and WHEREAS, within seven days of the filing of the petition in accordance with Section 4.13 of the City Charter, the City Secretary examined the petition and has submitted her certificate stating that the petition is sufficient and in compliance with the provisions of Article IV Initiative, Referendum and Recall of the City Charter; and WHEREAS, Council Member Joey Hawkins has indicated that he does not intend to resign his office and in order to comply with the requirements of the Recall Election provisions of the City Charter, the Texas Election Code and other applicable provisions of the law, it is necessary to order a Recall Election; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That a municipal Recall Election is ordered to be held in the City of Denton, Texas, on Saturday, May 7, 2016, such date being a uniform election date as defined in Tex. Elec. Code §41.001, as amended (the "Code ") for the purpose of determining whether Council Member Joey Hawkins shall be removed from the City Council by Recall. SECTION 2, That the City Secretary is authorized to prepare the official ballot for the Recall Election and perform every act required by the City Charter and laws of the State of Texas for holding elections. That the ballots used at the recall election shall conform to the following requirements: (a) With respect to the person whose removal is sought, the question shall be submitted: "SHALL JOEY HAWKINS BE REMOVED FROM THE CITY COUNCIL BY RECALL?" (b) Immediately below such question shall be printed the two following propositions, one above the other, in the order indicated: "YES„ "NO" S:V.egall®ur Daumenis \OrdinnoKeski6kCie Lion Ordering Recall dac SECTION 3. The election and early voting shall be conducted at the time and in the manner specified in and in accordance with an agreement between the Election Administrator and Denton County and the City of Denton. SECTION 4. The manner of holding such election and all questions pertaining thereto shall be governed by the election laws of the State of Texas. SECTION 5. The City Council has found and determined that the meeting at which this Ordinance is considered is open to the public, and that notice thereof was given in accordance with provisions of the Texas open meetings law, Tex. Gov't. Code ch. 551, as amended, and that a quorum of the City Council was present. SECTION 6. That this ordinance shall become effective immediately upon its passage, publication, and approval. PRESENTED AND PASSED on the day of _.. _ meeting of the City Council of the City of Denton, Texas, by a vote of at the regular meeting of the City Council of the City of Denton, Texas. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: �. day of 2016, at a regular ayes and nos CHRIS WATTS, MAYOR 2016. Page 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -099, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the renovation of an existing pre- engineered metal building located at 651 South Mayhill Road for the City of Denton Solid Waste Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5866- awarded to Links Construction, LLP in the amount of $522,743). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION The City of Denton Solid Waste and Recycling Department purchased a five (5) acre property and metal building located at 651 S. Mayhill Road in January 2013. The tract was purchased to provide additional land and a building for existing and future solid waste operations which will assist in meeting the Department's long range strategic plan. Currently the site and building serves: • Residential Cart Storage, Maintenance, and Operations • Opala Recycling • Denton Municipal Electric Warehouse Storage • City of Denton Fire Department and Police Department Storage • Commercial Collection Container Inventory Area The future plans are for the Department's container, welding, and maintenance shop to be located within the building. To support the employees and operations utilizing the building, the building renovation and construction includes areas for offices (4), secure storage areas, restroom facilities, break area, utility services, technology systems, and a safety shower area. The restroom area will have exterior access in order to support the community garden site, located immediately south of the building. Requests for Proposals were sent to 1115 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Two (2) proposals meeting specifications were received. The proposals were evaluated based upon published criteria including price, delivery timeframe, compliance with specifications, and indicators of probable City of Denton Page 1 of 3 Printed on 1/27/2016 File #: ID 16 -099, Version: 1 performance. Links Construction, LLP was ranked the highest and determined to be the best value for the City of Denton (Exhibit 1). As significant time had elapsed from the point of bid response to award recommendation, Links Construction, LLP was contacted for confirmation of pricing. There was a price increase of products during that time period, which is reflected in the revised pricing column on Exhibit 1. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 11, 2016, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award the renovation of an existing pre- engineered metal building located at 651 South Mayhill Road to Links Construction, LLP in the amount of $522,743. PRINCIPAL PLACE OF BUSINESS Links Construction, LLP Denton, TX ESTIMATED SCHEDULE OF PROJECT The project is estimated to be completed within 105 working days of Notice to Proceed. FISCAL INFORMATION The construction will be funded from Solid Waste Capital Fund account 660868595.1360.40100. Requisition 4127598 has been entered in the Purchasing software system, STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner F,XHIRITS Exhibitl: Evaluation/Ranking Sheet Exhibit 2: Public Utility Board Draft Minutes Exhibit 3: Ordinance City of Denton Page 2 of 3 Printed on 1/27/2016 File M ID 16 -099, Version: 1 Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Dean Hartley at 349 -8243. City of Denton Page 3 of 3 Printed on 1/27/2016 O <u o m CL M 0 E p .2 0 it u 8 0 (Z 0 (Z m G1 O io Ci 44 O C CC 00 A. 44 44 M M 56 lap CD '00 e4 o un V wn o .41 cc,- s. 5 E 00 CD CD oz 4E o CL � CA CA L") L") L") CA CA CA CA L") CA CA cn cn cn cn cn cr rn cr b4 Up„ U ti UQ U O '6 73 C) -u Ei , E , (-)-o = t,,) Ei Ei in o 03 o 03 sm. C. Eg *c — — — — — — — — — — — — — — — , , -0 O O <u o m CL M 0 E p .2 0 it u 8 0 (Z 0 (Z m G1 O io 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 January 11, 2016 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 11, 2016 at 9:00 a.m. in the Council Chambers at the City of Denton City Hall, 215 E. McKinney Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Barbara Russell, Lilia Bynum, Brendan Carroll and Susan Parker Absent: Charles Jackson Ex Officio Members: George Campbell, CM; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA B. PUB15 -088 — Consider a recommendation for the approval of RFP 45866 for Links Construction to enter into a contract with the City of Denton in the amount of $522,743 to provide construction and renovation services within an existing Solid Waste and Recycling Department building located at 651 S. Mayhill Road, Denton, Texas. Attachment: Exhibit 1 - RFP 5866 Pricing Sheet A motion was made by Board Member Russell to approve item B, second by Board Member Parker. Vote 6 -0 approved. Adjournment 11:13 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE RENOVATION OF AN EXISTING PRE - ENGINEERED METAL BUILDING LOCATED AT 651 SOUTH MAYHILL ROAD FOR THE CITY OF DENTON SOLID WASTE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5866- AWARDED TO LINKS CONSTRUCTION, LLP IN THE AMOUNT OF $522,743). 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 5866 Links Construction, LLP $522,743 SECTION 2. The acceptance and approval of the above competitive proposals shall not constitute a contract between the City and the person submitting the proposal for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Proposers including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the proposals accepted and approved herein, provided that such contracts are made in accordance with the Notice to Proposers and Request for Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the EXHIBIT 3 authority to take any actions that may be required or permitted to be performed by the City of Denton under RFP 5866 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 52016. 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 16 -100, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 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 architectural, structural, mechanical, and electrical design services in support of the design of the new City of Denton Household Chemical Collections Facility to be located at 1527 South Mayhill Road; providing for the expenditure of funds therefor; and providing an effective date (File 5906 awarded to Nelson+ Morgan Architects, Inc. in the not -to- exceed amount of $239,935). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION This Professional Services Agreement is with the architectural firm of Nelson+ Morgan Architects, Denton, Texas to develop the design and drawings for the construction of the City of Denton's Regional Household Chemical Collection (HCC) facility. The new facility will include vehicle traffic lanes, and drop -off areas for the acceptance of HCC materials from citizens of Denton County and surrounding smaller cities in the region. The building is anticipated to be approximately 15,000 square feet, and shall be submitted for Leadership in Energy and Environmental Design (LEED) certification- Silver Level. The professional services project will be completed in five phases. Phase I- Schematic Design Phase II- Design Development Phase III - Construction Documents Phase IV- Bidding and Negotiations Phase V- Construction Administration The detailed descriptions of each phase are included within the Professional Services Agreement (Exhibit 3). In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm including the design of a storage facility at the Lake Ray Roberts Water Treatment Plant, the renovation of windows at the Emily Fowler Library, and the City Hall East Customer Service Lobby Counter Modification, Kiosk and Store Front Entry Modification projects. Therefore staff has elected to not seek qualification based competition for these identified services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) City of Denton Page 1 of 3 Printed on 1/28/2016 File #: ID 16 -100, Version: 1 On January 25, 2016, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a Professional Services Agreement (PSA) for design services relating to the Household Chemical Collections Facility with Nelson+ Morgan Architects, Inc. in the not -to- exceed amount of $239,935. PRINCIPAL PLACE OF BUSINESS Nelson+ Morgan Architects, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the project as defined in the Professional Services Agreement. FISCAL INFORMATION The services to be performed under this contract will be funded from Solid Waste Capital Fund account 660876595.1360.21100. Requisition number 127653 has been entered in the Purchasing software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 4.2 Seek clean and healthy neighborhoods in Denton EXHIBITS Exhibit l: Public Utilities Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Professional Services Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -100, Version: 1 For information concerning this acquisition, contact: Dean Hartley at 349 -8243. City of Denton Page 3 of 3 Printed on 1/28/2016 h rvvm d by I cx:ls i''I EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD January 25, 2016 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 25, 2016 at 9:02 a.m. in the Service Center Training Room at the Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Vice Chair Phil Gallivan Ex Officio Members: George Campbell, City Manager, Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA A. PUB16 -012 Consider recommending an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a professional services agreement for architectural, structural, mechanical, and electrical design services to support the design of the new City of Denton Regional Home Chemical Collection Facility to be located at 1527 South Mayhill Road; providing for the expenditure of funds therefor; and providing an effective date (File 5906 awarded to Nelson + Morgan Architects, Inc. in the not -to- exceed amount of $239,935. Attachments: Exhibit I- Professional Services Agreement Exhibit 2- Ordinance Howard Martin clarified on the original ordinance in the back -up had the wrong number, $201,905 should have been $239,935. The correction was handed out to the members. Board Member Russell asked if this was put our for bids. Scott Lebsack stated it was not, staff has worked with this firm before and purchasing allows it. Michael Copeland stated that it is an exception to competitive bidding. Board Member Russell motioned to approve and Board Member Jackson seconded, vote 6 -0 approved. Adjournment 10:38 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 ARCHITECTURAL, STRUCTURAL, MECHANICAL, AND ELECTRICAL DESIGN SERVICES IN SUPPORT OF THE DESIGN OF THE NEW CITY OF DENTON HOUSEHOLD CHEMICAL COLLECTIONS FACILITY TO BE LOCATED AT 1527 SOUTH MAYHILL ROAD; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5906 AWARDED TO NELSON+ MORGAN ARCHITECTS, INC. IN THE NOT -TO- EXCEED AMOUNT OF $239,935. 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. That the City Manager is hereby authorized to enter into a professional service contract with Nelson+ Morgan Architects, to provide professional design services for the City of Denton Household Hazardous Waste Facility, 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 5906 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 ; 2016. CHRIS WATTS, MAYOR EXHIBIT 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ' �. EXHIBIT 3 rrr ; t City of Denton Contract # 5906 Household Chemical Collections Facility Design Services EXHIBIT 3 CONTRACT #5906 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: 5ILTIQN-1. EMPLOYMENT OF DESIGN PROFESSIONAL Basic Services: The Design Professional's Basic Services consist of those described in Section I and include usual and customary structural, mechanical, and electrical engineering services. Services not set forth in this Section 1. are Additional Services. ........... =1 ... I I 1. Zoning/Platting Research —Design Professional will meet with the City of Denton to understand the constraints and parameters affecting the proposed sites. 2. Programming — Design Professional will meet with all appropriate parties to determine a preliminary program. The Architect shall review the program and other information furnished by the Owner, and shall review laws, codes, and regulations applicable to the Architect's services, T Page I Contract 5906 Household Chemical Collections Building EXHIBIT 3 The Architect shall notify the Owner of (1) any inconsistencies discovered in the information, and (2) other information or consulting services that may be reasonably needed for the Project. 4. Preliminary Budget: The Architect's estimate of the Cost of the Work shall be based on current area, volume or similar conceptual estimating techniques. 5. The Architect shall submit the Schematic Design Documents, and the Sustainability Plan prepared in accordance with AIA B 101 SP-2007 Section 3.2.1.1- 3.2.1.7 and 3.3.13. 3.4.3 to the Owner, and shall request the Owner's approval. 6. Pre-Design application Submission — Design Professional will submit to the City of Denton planning department a conceptual site plan and questions to the City. These plans and questions will be reviewed by the Owner in advance of the Pre-application Conference. After approval from the Owner, Design Development Phase will commence. D2. Schematic Design Package D3. Pre-application Package Estimated completion time: 30 days from notice of awayd. Phase 2 — Page 2 Contract 5906 Household Chemical Collections Building EXHIBIT 3 2.c. The Architect shall submit the Design Development Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work or the Sustainability Plan, and request the Owner's approval. With the following deliverables: D4. Design Development Package Phase 3 — Construction DocumenjSjhall include the following: 0 e ( wner and the requirements ot Lillie governmental authorities -having jurisdiction over the Proj ect. 3.d. The Architect shall update the estimate for the Cost of the Work. The Architect will send the 75% CD Package to a third party cost estimator for an updated construction cost estimate. 3.e. The Architect shall submit the Construction Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work or the Sustainability Plan, take any Page 3 Contract 5906 Household Chemical Collections Building EXHIBIT 3 wilrzl ni appluval. Cost of the Work exceeds the Owner's budget for the Cost of the Work, the Architect sh make appropriate recommendations to the Owner to adjust the Project's size, quality or budg for the Cost of the Work, and the Owner shall cooperate with the Architect in making su adjustments, I 'T 11hase 4 -- Bit ding Following the Owner's approval of the Construction Documents, the Architect shall assist the Owner in the following: 4.a. Distribution of Documents — Design Professional will aid in the distribution of documents to potential bidders in electronic format. 4.b. Pre-Bid Conference and Tour — Design Professional will assist in administering a conference and tour of the site for prospective bidders. clarification if necessary in the form of Addenda. ® Evaluation of Bids - Once bids are received and opened by the City, Design Professional will aid in the evaluation of the bidders. Estimated completion time: 90 Ul di s from submission of Construction Documents. Phase 5 — Construction Administration shall include the follaAjag: The Architect shall provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document A201-2007 SP, General Conditions of the Contract for Construction, for use on a Sustainable Project. If the Owner and Contractor modify Page 4 Contract 5906 Household Chemical Collections Building EXHIBIT 3 AIA Document A201-2007 SP, or use a different form, those modifications shall not affect the Architect's services under this Agreement unless the Owner and the Architect amend this Agreement. 5.b. Construction Administration — Design Professional will attend weekly meetings during construction, produce Field Observation reports, review submittals, produce responses to Requests for Information, and respond in a professional manner as needed during the construction process. Services in this phase are defined in AIA Document B 101 SP-2007 3.2, 5 and in AIA Document A201 SP-200T Estimated completion time for construction is anticipated to take approximately 12 months: The Architect's responsibility to provide Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. LEE D Certification Consultant Services Page 5 Contract 5906 Household Chemical Collections Building EXHIBIT 3 required to establish the authority of the Architect as an agent of the Owner for the limited purpose of pursuing the Sustainability Certification, The Design Professional will furnish the services of a professional LEED consultant to manage the execution of the LEER certification for the project. Fees for services are outlined below: LEE D Project Administration Services _25,920°00 USGBC Project Registration Fee $___ 1 ',44QM USGBC Review Fee $. 3,69.0.00 LEER Energy Modeling Services $ . ....... 9.8.40....0.(.) LEER Commissioning Services $ 15,,360.00 Estimated completion time: The final application and accreditation shall be completed as expeditiously as possible upon project completion. =- Reimbursable Expenses are expenses incurred by the Design Professional, the Design Professional's em- ployees and consultants in the interest of the Project (includes the third party cost estimate for the project the Owner, Scope of Work Provided by the Client 1, Topographical and Boundary surveys 2, Geotechnical Investigation and Report 3, Soil Investigation if required 4. Texas Accessibility Standard Plan Review and Post-construction Inspection 5. Construction Observation and Materials Testing 6. Platting services IN111 N IM M11 NO � I MW � i !, I 112111MIT1711111 In in, 1 11 1 =1 , UN 6. Traffic Impact Studies 7. TxDOT Permits 8. Zoning change requests 9. Retaining wall design 10. Environmental site assessments Page 6 Contract 5906 Household Chemical Collections Building EXHIBIT 3 1. 1. . Site features and amenities outside of building footprint and not directly attached to the Building. 12, Currently unidentified specialty electrical, lighting or communication systems, including voice and data, audio/visual, security, or other low voltage electronic systems 13 . Design of franchise utilities (gas, electric, telephone, and cable television) Page 7 Contract 5906 Household Chemical Collections Building EXHIBIT 3 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: ®1 BASIC SERVICES 2 ®2 SUSTAINABILITY SERVICES Compensation for the Sustainability Services described in Section One is based on a stipulated sum. The Sustainability Services shall be compensated in accordance with the schedule set forth below: ® Civil Engineering: For the Civil Engineering services, the Owner shall compensate the Architect a total of Thirty Thousand Ninety Dollars ($30,090.00), Compensation is based on a stipulated sum, The Civil Engineering Services shall be compensated in accordance with the schedule set forth below: Concept Site Plan Development $ 4,200.00 Pre-Application Submittal $ 690.00 Site Civil Plans $19,800.00 Construction Period Services $ 5,400.00 SUB-TOTAL Li am= Page 8 Contract 5906 Household Chemical Collections Building EXHIBIT 3 For the Cost Consulting services, the Owner shall compensate the Architect a total of Eight-Thousand, Eight Hundred and Ninety Four Dollars ($8,894,00). Compensation is based on a stipulated sum. The services shall be compensated in accordance with the schedule set forth below: SUB-To $ 4,284,00 $ 4,6MOO i A LIN if I 2.5 REIMBURSABLE EXPENSES Reimbursable Expenses are expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed the stated total without the prior written approval of the Owner,g SUB-Total - Reimbursable Expenses LLNIIA rMiMLIOM11 1=4_935.00 2® ADDITIONAL SERVICES Compensation for Additional Services is stated below, The hourly billing rates for services of t1l Architect and the Architect's consultants, if any, are set forth below. The rates shall be adjusted accordance with the Architect's and Architect's consultants' normal review practices. Architect: Principal $150.00/hour Project Manager $87.50/hour Registered Architect $87.50/hour Expert Testimony $400/hour Associates $85,00 /hour Staff /Intern Architect /CA rafter $77.50/hour Secretarial /Word Processing $42.50 /hour Consultants: Cost plus 20%. Exact rates to be determined as needed. Compensation for Additional Services of outside consultants, including additional engineering services shall be negotiated prior to delivery of the actual service. All additional services shall receive a 20% mark-up for handling and coordination. Page 9 Contract 5906 Household Chemical Collections Building EXHIBIT 3 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2, Attachment A -The Design Professional's Proposal, Project Schedule, and Pricing Attachments B — Awarded Contractor's documentation, including W -9 form, and Conflict of Interest documentation. 4. Attachment C — Awarded Contractor's certificate of insurance documentation. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON MM ATTEST: JENNIFER WALTERS, CITY SECRETARY Im APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Im GEORGE C. CAMPBELL CITY MANAGER NELSON + MORGAN ARCHITECTS, INC. BY m - - - - -- ....... ALAN NELSON, ARCHITECT (SIGNATURE) WITNESS: Page 10 Contract 5906 Household Chemical Collections Building EXHIBIT 3 6 "1 1 , 4 fit L,-W,M �4MTMF &11�jlr ip � 1 � EXHIBIT 3 CITY OF DEMrON GENERAL CONlinnONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES AX171CLE1. Al?,(-'IIITECFORENCINEER'SRESPC)NSIBIITTIES 1.1 The Architect. or 1,'Ingincer's services consist of those services for the Project (as defined in Ute agreement (the "A.Uz'ecment") arid proposal (the "Proposal") to slime these General Conditions, are attached) perfoirried by the Architect or Enpneer (hereinafter called the ` "l Professional ") or Desigui Professional's eniployees and consultants a,,; enumerated in Articles 2and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perronn all Services as an independent contractor to the prevailing ptofessionalstmdards consistent with the level of care arid .&M ordinarily exercised by mendiers of the same tyroression currently practicing in die same locality under snuipair conditions, including i-casoriable, inforneed JudgmerAs and pi-offipt timely actions (the "Dep yee of Care"). Uw Services shall l: re pedbrined as expeditiously as is consistent with the Degree of Caro necessary for the orderly prof...Te.". ofthe Project Upon request orthe Owner, the Desig ..,n Professional shall submit for the Owner's approval a schedide.ror the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances .for periods of time required for the Owner'.,; review and for appiovat or submissions by authorifies having jutisdiction over the Project Time limits established by this schedule and approved by the Owner shall not, except for reasonable c=se, be exceeded by the Desiigln Professional or 0wrker, and any acAjusftnenb.,, to this schedule shall be imutually acceptable to both parfics. ARTICLE 2 S`COPE OF BASIC SERVICES 2.1 BASIC SERVIC'ES DEMNED The Design Professional's Basic Service,,, consist ofthose described in Sections 2.2 ttiroug 012.6 of these Gieneral Conditions and include without limitation norynal Mracturat, civil, mcchianical and electrical crigincering services and any other ongineeiring services recessaxy to produce a complete and accurate set of construction][00cuments" m described by and required in Section 2.4. The Basic Services maybe modified by the Agreement. 2.2 SCHEMATICI)ESIGN PHASE 12A '11ae, Desipn Professional, hi consultation with the Owner, shall develop it written progTrarri for the TN•oject to ascertain Owner's needs and to establish the requirenacrAs for the Project, 2.2.2 'rhe Dcsign Professional shall provide a preffininary evaluation orthe Owner's prop gram, con stmetion.schedule and construction budget requirements., cacti in terins orthe other, miject to the limitations set forth in Subsection :5.2.71. 2.2.3 The Desi pg Professional shall review with the Owner alternative approaches to design and conshuction orthe Project. 2.2.4 Bawd on the muktally agreed upon program, schedWe and constiuction budp get recpikerrients, the Dcsipfl Professional shall prepare, for approval by dhe Owner, Schematic Design Do=nenL,.,, consisting of drawings mid other documents Mustrating the scale and rdation.ship sap' Project components. The Schematic Design shall contemplate coirripliance with all appheable laws, statutc.,3, ordinances, codes and regulations.. 2•15 °l lie Design Prole ssional shall submit to the Owner a preliminary detailed estirriate of Construction Cost based on current area, volurne or other unit costs and which indicates, the cost or each category of work involved in constniLting the Project and estabfishes an elapsed fime factor :ror the period of tine rrorn axe coukinenceirrient to the completion arecristructi on. 23 DESIGN DEVELOPMENT PHASE 23.1 l3ased on the approved Schematic Desip pi Docuffientq and any a0justimients authorized by the Owner in the program, schedule ox construefion budgc4 the Desip 'n Professional shall prepare for approval by the Owner, Design Development Documents conaisfing of drawings and other docurnefts to fix and describe the size and character of the Project as to architechind., structurall, mechanical and etectriml systems, materials and such other elenwnts- as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval ofthe docurrients, Design Prolbssional represents that the Documents and specifications vvi U be suffi6ent and adequate to 11iffill ffic puq.yoses o.rthe Project. 23.2 rhe I esip .) ;n Profies:sional shall advise the Owner or any adjustments to the proliminaE y esfirnate of Construction Cost in a.fiorthe• Detailed Statement as described in Section 2.2.5, 2A CONST'RUCTION 1)(KAMENTS PHASE 2.4.1 Based on the approved Desigp Development Documents and any further a4justrnents, in the scope or quality of the Project or in the constructlon budget authorized by the Owner, the Designllrofbssional shall prepare, for approval by die Owner, Construction Documents consisting ofDravyings and Specifications setting forth in detail requirements for the construction orthi. Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.41 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement fibrins, the Conditions oftll contract, and the fonn orAgreement between the Owner and contractor, 14.3 'the Design Professional shall advise the Owner ofany adjustments to previous prefirninaly esfirnates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 TheDesipri Professional shall assist, the Owner irk connection with the Owner's responsibility foi filing documents reolt6red for the approval of governmental mAhorities having jurisdiction overthe Nqjca, 15 'ON STRUC110N CXW]l PRO(,[ iRE mjewr 2.55A The Desip ,..fl 1rxofcssiomd, following the Owner's approval ofthe Consftw.,lion Dorurnents and ofthe latest prefindiriairy &Wled estimate of Construction Cost, shall a, ssisl the Owner in procuring a corkshuction contract for the Project throut#x any proem•ement method that is ltqgafly applicable to the Project including wittwist Page 1.1. Contract 5906.14ouschold Chemical Collections Budding EXHIBIT 3 limrtafion, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the constniction contract is in the sole discretion ofthe Owner, 15.2 If' the construction contract amount [by the Project exceeds the total construction cost ofthe Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Constniction Documents as may be required by the Owner to reduce or modify the quantity or quality ofthe work so that the total construction cost ofthe Pro eGt will not exceed J the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE ADMINISTRATION OF THE CONSTRUCTION CIONTRAU-7 16.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award ofthe Contract fbr Construction and terminates at the issuance to the Owner ofthe final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 16.2 I'lie Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administi-ation shall also be in accordance with AIA docurnent A201, General Conditions ofthe Contract for Construction, current as ofthe date ofthe Agreement as may be amended by the City of Benton 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 of6ovemnients, current as ofthe date ofthe Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement ofthe Owner arid Design Professional 2.6.4 The Design Professional shall be a representative of and -,hall advise and consult with the Owner (1) during construction, and (2) at the Ownces direction from time to time during the correction, or warranty period described in the Contract for Comtruction. 'Elie Design Professional shall have authority to act oil behalf ofthe Owner only to the extent provided in the Agreement and these General CondUions, unless otherwise modified by written instrument. 1&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 net in progress, to become familiar with the progress and quality of work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in substantial accordance with the Contract Documents. Design Pro:ressional 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 progress and quality ofthe work., mid shall exercise the Degree or Care and diligence in discovering and promptly reporting to the Owner any observable detects or deficiencies hi the work of Contractor or any subcontractors The Design Professional represents that lie will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any de(betive designs or specifications furnished by the Design Profcssiorial at no cost to the Owner. The Owner's approval, accep. lance, use or or payment. for all or any part ofthe Design Proressional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owner's rights hereunder, 16.6 The Design Professional shall not have control over or charge ol'and shall not be responsible for construction means, methods, techniques, sequences or procedures, or.ibr safety precautions and programs in connection with the work. The Design Profbssional 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 faifure may result from Design Professional'.s, negligent acts or omis. sions. The Design Professional shall not have control over or charge of acts or emissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions orthe 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 Profcssional's consultants shall be through the Design Professional 2.6.9 Based on the Design Professional's observations at the site ofthe work. and evaluations ofthe Contractor's Applications, for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Ovnier, based on the Design Professional 's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application ror Payment, that the work has progiesqed to the point indicated and that the quality ofthe Work. is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor. rectable prior to completion and to specific qualifications expressed by the Design professional, The issuance of Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance oraCertificate 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 orthe Contract Sum. 2.6.111 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 io require additional hispeLtion 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 ofthe Design Professional nor a decision made hi good tbith either to exercise or not exercise such authority shall give rise to a ditty or responsibihty ofthe Design Professional to tire Contractor, Subcontractors, material and equipment suppliers, their agents of employees or other persons performing portions ofthe work. 2.6.12 'the Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (l) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contrail Documents. The Design Professional shall act with such reasonable promptness to cause Inc) delay in the work or in the construction or the Owner (.r of separate contractors, while allowing sufficient time in the Design ProfessionaVs professional judgrinent to per nat adequate review. Review of such submittals is not conducted for the purpose of7 determining the accuracy and completeness of'other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of'which remain the responsibility of Contractor to the extent required by the Contract Documents. The Design Professional's review shall not corntitute approval of safety precautions or, unless otherwise speeffically stated by the Design Professional, of construction means, methods, techniques, sequences or Procedures. The Design 11roloss4aiaN approval of speerfic item shall not indicate approval of assembly of which the item is a component. When professional certification ol'performance characteristics Page 12 Confract 5906 Household Chemical Collections Building EXHIBIT 3 of materials, systeraq or equipment is required by the Contract, Documents, the Design Professional shall be entitled to rely upon such certification' to establish that the materials,systerns or equipment will meet the performance criteria. required by the Contract Documents. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data it'deci[ned necessary by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, ror the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving air adjustment in the Contract Sum or an extension ofthe ConfractTime, which are not inconsistent with the intent ofthe Contract Documents. 2.6..14 On behalf of the Owner, the Design Professional stall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. '1 he Design Professional will receive and review wri ften g ntecs and related tu ir a documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment, upon compliance with the requirements ofthe Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters, concerning perlbrynance ofthe Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon, 2.6.16 Interpretations and decisions ofthe Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall The in writing orinthe form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement, and in the absence of negi igence. 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of work as provided in the Contract Domiments. 2.6.48 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will rehiaburso the Owner for all darnages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of Design Professional's obfip atio s thereunder. 2.6. 19 rl 'heDesignProfessional shall provide the Owner with one set of of Service issued for construction to the Owner in electronic term, called Electronic Drawings Files (PDF Format), for purposes ofrelorence, coordination, and/or facility management only. These files will be updated showing any significant documented changes received from the General Contractor to the Construction DocumcnLs during the Construction Phase, ARTICLEE 3 ADDITIONAL SERVICES 3.1 GENERM, 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. 'llieservices described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. if services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives, written approval tiom the Owner to proceed, If Owner indicates in writing that all or part. of such Contingent Additional Services is not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of'Design Professional. 3.2 PROJE UfRE PRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, (lie Design Professional shall provide one or niore Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specificatiom or other documents when such revisions are: 1. inconsistent with approvals or instmetions previously given by the Owner, including revisions made necessary by adjustments in the Owner's prograin or Project budget; 2- required bythe enactment or revision of codes, laws or regulations, subsequent to the preparation of such. documents, or 1 due to changes required as result ofthe Owner's failure to render decision in a timely manner. 3.3.2 Providing services required because m7siggrifficant change,, in the project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultation concerning replacernern of work damaged by fire or other cause (hiring construction, and furnishing services required ill connection with the replacement of such work. Page 13 Contract 5906 Household Chemical Collections Building EXHIBIT 3 3.3.5 Providing services made necessary by the default or the Contractor, by major defect-, or deficiencies in the work, ofthe Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.6 Providing services in evaluating an extensive number of claims snibmined by the Contractor or others in connection with the work. 3, 3.7 Providing services in connection with a public hearing, arbitration proceeding or sepal proceeding except where the Design Professional is party thereto. ,A 33.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or Providing services in connection with bidding or constialction prior tar the completion ofthe Construction Documents Phase. 3.19 Notwithstanding anything contained in the Agreement,, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act, or ornission ofthe Design Professional shall be perrormed by the Design Professional as a part, ofthe Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services, Die intelvenling or concurrent negligence ofthe Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or other special studies. 3.41 Providing planning surveys, site evaluation,, or comparative studies ofpirospective sites. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others havingJaurisdiction over the Project. 3✓4.4 providing services relative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3A.6 Providing services to vcdi the accuracy of drawings or other information funashed by tile Owner, 3.4,7 Providing coordination of construction performed by separate contractors or, by the Owner's own Races and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3AS Providing detailed quantity surveys or inventories ormaterial, equipment and labor. 3.4.9 1roviding analyses of operating and maltstenance costs, 3.4.10 Making investigations, inventories ofmaterials or equipment, or valuations and detailed appraisals of'exisfing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation or operation and maintenance manuals, training personnel for operation and maintenance and consuiNtion during operation. 3.4.13 Providing interior design and sumilar services required for or in connection with the selection, procuremmit or inqtAlation of furniture, furnishings and related equipment.. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of Contract for Construction 3.4.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions ofthe Project provided as a part, of Basic Services. 3.416 Providing any other services not otherwise included in this Agreement or not customarily furnished ill accordance with generally accepted architectural practice. 3.4.17 Preparing a set of reproducible record drawings ill addition to those required by Subsection 2.6.19, showing significant changes in the work. made during con - struction based on marked-tip prints, drawings and other data ftimished by the Contractor to the Design Professional. 3AA8 Notwithstanding anything contained in the Agreement, Proposal or these General! Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission ofthe Design Professional shall be performed by the Design Professional as a part ofthe Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence ofthe Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. AIMCLE 4 OWNER'S IMSPONSIBILITIES 4.1 'floe Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Ownees objectives, (2) schedule and design constraints and criteria, including space requirements and relationships,, flexibility, expendability, special equipment, systems and site requirements, as more speci- fically described in Subsection 2.2.1. 4.2 I'lie Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all ofthese costs. 43 lfreque.Aed by the Design Professional, the Owner shall furnish evidence that fman6al arrangements have been made to fulfill the Owner's obligations under this Agreement. Page 14 Cona-act 5906 :Household Chemical Collections Building EXHIBIT 3 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. 1be Owner or such authorized representative shall render decisions in a timely manner Pertaining to documents submitted by the Design professional in order to avoid unreasonable delay in the orderly and sequential progress ofthe Design Professional's services 4.5 Where applicable, the Owner AW1 banish surveys describing physical characteristics, legal limitations and utility location- forthe site ofthe Project, and a written legal description ofthe site. 'the surveys and legal information shall include, as applicable, Wades and lines of streets, alleys, pavements and adjoining; property and structures; adjacent dninagc; rip #Its-of-way_ restrictions, easements, encroachilients, zoning, deed restrictions, boundaries and contours of the site; locations, of merisioi ns and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a prqject benchmark, 4.6 Where applicable, the Owner shall furnish the services, of'geonechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolafion tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub -soil condftions, with reports and appropriate professional recommendations. 4A.1 Ibe Owner shall furnish the services of other' consultants when such services are reasonably required by the scope ofthe Project and are requested bythe Design Professional and are riot retained by the Desig m Professional as part of its Basic Services or Additional Services. 4.7 When not a part ofthe Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests ofhalArdous materials, and other laboratory and environmental ' tests, inspections and reports required by law or the C ontract Document.s. 4A The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Pujmt, including auditing services the Owner may require to verify the Contractor's Apphrations, for Payment or t(r ascertain how or for what purposes the Contractor has used the money paid by cs on behalf ofthe Owner. 4.9 'Ihe services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Design professional shall be entitled to rely upon the accuracy and completeness thercofin the absence orally negligence on the part. ofthe Design Professional. 4.10) The Owner shall give prompt written notice to the Design Professional ifthe Owner becomes aware of any fault or defect in the project or nonconformance with the Contract Documents, 4.11 Desig pi professional shall propose language for certificates or certifications to be requested ofthe Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least firarteen (14) days prior to execution. `the Owner agrees not to request certifications that would require knowledge or services beyond the scope ofthe Agreement. AMULE 5 CIONSTRUC710N COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost, shall be the total cost, or estimated cost to the Owner of all elements ofthe Project designed or specified by the Design professional. 5J.2 The Construction Cost shall include the cost at current mariwt rates of abor and materials furnished by the Owner and equipment designed, specified, selected or specially provided ter by the Design PrOfCSS&Mal, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for con- fingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.1.3 Constmotion Cost (foes not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY P'011(-'(-)NSTRTJCFION(.,'OS'f 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates ofCon-aruction Cost and detailed estimates of Construction Cost prepared by the 11h -sign Protessional represent the Do-sign Professional's best judgment as a design professional familiar with die construction industry. It is recognized, however, that. neither the I)esipn Professional nor the Owner has control over flic cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, of over competitive bidding or market. conditions. Accordingly, the Design professional cannot and does not warrant or represent diat bids or cost proposals will not vary from the Owner's project budget or train any estimate of Construction Cost, or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition ofthe Agreement by the furnishing, proposal or establishment ora Project budget, unless such fixed limit has been agreed upon in writing and signed by the pailics thereto. If' such a fixed limit has been established, the Desip pi llrolessional shall be permitted to include contingencies for design, bidding and Price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract JCDocu ments, to make reasonable adjustments in the scope of Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit., Fixed hilts, if any, shall be increased in the amount of an merease in the Contract urn occurring after execution off the Contract for Construction. 5.23 If the I.Vocurement Phase has not commenced within 90 days after the Desigii Professional submits the Construction Documents to the Owner, any Project budget: or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the (late of'submission of the Construction Documents to the Owner and the date on which proposals are song kit. ARTICLE 6 OWNERSHIP AND USE OF' MXAMENTS 6.1 The Drawings, Specifications and other documents prepared by the Designs Project are instruments of the Design Prolessional's service and shall _;n Professional for this become the property of the Owner upon termination or completion of the Ap ,reement. The Desip gn Professional is entitled to retain copies or all such documents. Such documents, are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's safe risk and expense. In the event the Page 15 Contract 5905 Household Chemical C'ollections Building EXHIBIT 3 Owner uses any of the in or materials developed pursuant to the Agreement in another project or for other purposes than arc, specified in the Ap ,reemenl, the .Dessi prfl Professional is released Item any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official rep gulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation ofthe Design Prol'osgional's reserved rights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANIX)NMENT 7J The .Design Professional may terminate the Agreement upoia not less than thirty days written notice should the Owner fail substantially to perforni in accordance with the Germs of the Agreement through no fault of the Design Professional, Owner may terminate the Agreernent or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under- the Agreement shall cease immediately upon Design ProlessionaPs receipt of such notice. Before the end cif the thirty (30) day period, Design Professional shall invoice the Owner for all work. it satisfactorily performed prior to the receipt of such notice. No aniount .hall hall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall becorne property oaf the Owner upon ten-nination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a riiew Design Professional' for continuation ofserviceq on the Projeet, Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive (lays, the Design Professional shall be compensated for services satisfactorily performed prior to notice of` such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide fi)r expenses incurred in the interruption and resumption ofthe Design Professional's services. 73 '.he Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. Ifthe project is abandoned by the ()wner for more than 90 consecutive days, die Design Professional or the Owner may terminate the Ag ,rcernent by giving written notice. 7.4 Failure of Owner to make payments to the Design Professional for work safisfactorilly completed in accordance with the Agreement shall be considered substantial non- performance and cause for termination. 7.5 Ifthe Owner fails to make payment, to Design Professional within thirty. (30) days ofreecipt of statement for services property and satisfactorily performed, the Design Professional rmty, upon seven days written notice to the Owner, suspend perforinance of services under the Agreement. 7.6 In the event Oftffrun)alion net the fault of the Design llroflcss0onal, the Desip Professional shall be compensated for services properly and safisfiwforily perronned prior In termination. Aiaicm�, s PAYMENTSTO THE DESIGN PROFESSIONAL 8.1 DIRIN'T PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined ass the direct salaries ol'the Design Professional's personnel engaged on the 1'rojectand the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insimance, sick leave, holidays, vacations, pension- and similar conhibutiows and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addition to compensation for Basic mid Additional Services and include expenses incurred by the Design Professional and Desig . and consultants in the interest ofthe Project, as identified in the following 0auses. pi Professional's employees i 8.2.1.1 Expense of ransporGalion in connection with the.prqject; expenses in connection with authorized out-of•town Ravel; long-distance cornmurications; mid fees paid for securing approval Of authorities having jurisdiction over the Project. 81,12 Expen.w, of reproductions (except the reproduction of the sets, of documents referenced in Subsection 2.6.19), postage and handling of'Drawings, Specifications and other documents. 8.21.3 .f authorized in advance by the Owner, expense of'overfirne work requiring Nglierthan regular rates. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.L5 Expense ofcomputer -aided desigti and drafting equipment time when used in connection with the Project,, 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 8.3.1 Payments for Basic Services shall be made monthly arid, where applicable, shall be in proportion to services performed within each phase arservice, on the basis set forth in Section 2 of the Agreement a nd the schedule of'work. 831 Ifand to the extent that the time initially established in the Agreenient is exceeded or extended through no fault of the Design Professional, compensation f'or any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 8.3.3 When compensation is based on a percenftge Of Construction Cost and any portions ofthe Project are deleted or otherwise net constructed, compensa6tri for those portions of tine .[reject shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (I) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8A PAYMENTS ON AUCX)UNTOF ADDITIONAL SERVICES Page 16 Contract 590611ousehold Chemical Collections Budding EXHIBIT 3 8.4.1 payments on account ofthe Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days, after the presentation to the Owner ofthe Design Professional's statement or services rendered or expenses incurred, 8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account orpenalty, liquidated damages or other alms withheld from Payments to contractors, or on account ofthe cost of lianges in the work other than those for which the Design, Professional is responsible K6 DESIGN PROFESSIONAL'S ACCIOUNTING JU?,(X)IZDS Design Professional shall make available to Owner or Owner's authorized ref)reselitativerecords of Reimbursable Expenses and expenses, pertaining to Additional Services and services perfon-ned oil the basis of's multiple of Direct Personnel Expense for inspection and copying during regular business hours for three year's after the date ofthe final Certificate of Payment, or until any fifigation related to the Project is final, whichever date is, later. 9.1 The Design Professionaf shall mdeminiry and save and hold harmless the Owner and its officers, agents, and employees ftom and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney :fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or emissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement, 9.2 Nothing herein -hall be construed to create a liability to any person who is riot a party to the Agreement, and nothing herein shall waive any ofthe parties' defense,;, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense or goverruriental immunity, which defenses are hereby expressly reserved. ARTIULE 10 INSURANCE During the performance ofthe Services under the Agreement, Design Professional shall maintain the following; insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers orat least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of nor less than $100,000 for each occurrence and not less, than $250,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits ornot less than $500,000 ror each person and not less than $500,000 for each accident, and with property darnage limits of not less than $100,000 fix each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liabdity Insurance with limit-, of nit less than $100,000 for cacti accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5'rhe Design Professional shall furnish insurance certi Ficates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled without thirty (30) days' prior written notice to Owner, Design Professional shall provide Owner thirty (30) days prior written notice of any material changes to the policies. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements ofthis Article 10. AWFICLE 11 MPA.'ELLANEOUS PROVISIONS 11.1 The Agreement shall be governed by the laws ofthe State of Texas. Venue of any suit or cause of action under the Agreement shall Ile exclusively in Denton County, Texas. 111 The Owner and Design professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assi&M its interests in the Agreement without the written consent of the Owner. 113 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 ofthe Agreement which together represent the entire and integrated agreement between the Owner and Design Professionaf amid supersedes all prior negotiations, representations or agreements, either written or on d. The Agreement, may be amended only by written instrument signed by both Owner and Design professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions, I lowever, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the.following order: 1. The executed Agreement 2- Attachment,,; referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4, The Proposal 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor or a thiird party agatmst either the Owner or Design Proressional, 11.5 Upon receipt, of prior written approval of Owner, the Design Professional shall have the right. to include representations orthe design ofthe Prqject, 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 confi- dential or proprietary, 'Fhe Owner shall provide professional credit for the Desip j 41 Professional oil tile construction sign and in the promotional materials for the Pro ect. .Pa ge'17 Contract 5906.H.ousehold Chemical Collections Btfilding EXHIBIT 3 I L6 Approval by the Owner shall I not constitute, nor be deerned as release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and sub consultants for the accuracy and compatency ortheir designs or other work; nor shall such approval be deenied to be an assumption or such responsibility by the Owner for any defect in the desip gn 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 sinill be personally delivered or mailed to the respective pat-ties by depositing same in the United States mail to the address shown below sigrialure block on the AV.vement, certified nrail, return receipt requested, unless otherwise specified helvin All notices qball be deemed effective upon receipt by the party to whorn such notice is gi ven, or within three (3) clays after mailing 11.8 If any provision of the Agreement is found or deerned by a. court of'competentjurisdiLtion to be invalid or unenforceable, it. shall be considered severable liom the remainder of the AV eernent. 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, nAles, regulations, and ordinances applicable tan the work. covered hereunder as they may now read or hereinafter be amended during the term ofthis AgreerneirL 11-10 In performing the Services required hereunder, the Design Pfafessional shall not discriminate against tiny person on the basis of" mama;, color, religion, sex, national origin or ancestry, age, or physical handicap, 11-11 The captions of the Ageement are for infbimational purposes only, and shaU not. in arty way affect the substantive ternis or conditions ofthe Agreement Adopted 06129f2.007 Page 1.8 Contiact 5906 Household Chemical Collections Building EXHIBIT 3 � 1 I NELSON + MOV&IAN A R C H I T E C T S, June 29, 2015 Mr. Craig Waggoner Home Chemical Collection Supervisor 1527 South Mayhill Road Denton, Texas 76208 I N C If t:, l Colli,WoIi %rtii,.lil' +t °Y a(" 1 ;(Ices �liiJ�iA�. l Nelson + Morgan, Architects are pleased to provide the following proposal for providing Professional Services relating to the referenced project. It is our intent to provide normal architectural, structural, mechanical and electrical design services specific to the project requirements. Our understanding of the general scope of work is as follows: Development of the construction documents to relocate the current HCC Facility to a new location at the City of Denton site at 1527 S. Mayhill Road. • The project consists of 1 tract of land containing approximately 3.213 acres. Zoning is IC -G. • The tract currently houses the Fleet Fueling & Truck Wash Facility. • The site is platted as Lot 1, Block 1 of the Fleet Fueling & Truck Wash Addition. • The site is surrounded on 4 sides by property owned by the City of Denton and this property may be incorporated into the project as needed. • Total project size is undetermined at this time, but anticipated to include a building of approximately 15,000 sf. • Administrative and Resell /Retail spaces will be similar in function to existing HCC facility spaces. Two (2) auto drive thru lanes will be provided between the Administrative /Resell area and the materials processing and bulk storage area. Each drive lane will be provided with a 14'x14' overhead rolling door at each end. Total width of drop -off lanes will be 44'. • Material processing and bulk storage area will consist of an enclosed 6,000 s.f. to the north side of the drive thru lanes. • Primary exterior walls will be precast concrete panels with a painted elastomeric finish. • Roof will be a sloped, Galvalume finished standing seam metal panels to match SW Admin Bldg. • Electrical power systems will be designed to incorporate solar electric panels. • Administrative offices and Resale areas will be fully conditioned spaces. The drop -off and bulk storage areas will be heated with radiant natural gas heating and natural ventilation for passive cooling. • All existing exposed roof structure and deck (interior) will be galvanized finished. • Loading docks will be located adjacent to the bulk storage area on the east side to accommodate a minimum of 4 full size tractor /trailers plus separate recycle and bulk trash container areas. Docks will be equipped with all necessary safety equipment. One door position (to be determined) will be equipped with a hydraulic dock lever. Dock area will be covered with a cantilevered roof overhead. • A 4'x4' coiling door will be provided with a chute to loading the trash compactor /container. • Primary access to the site will be via the Spencer Road / Mayhill road from the west. Public vehicle parking will be provided along the east side of the Admin /Resale area. A new larger iiiiii Architocts uuu Planners 111111 Interior Dosign 111111, 2717 wind River Lane, Ste 230 Denton, Texas 76210 — -- ..... -- - -.... 940.566.0266 Fax �� +t�,.P.566.0223 EXHIBIT 3 Kc Piloposat June 29, 2015-edited 10 -2.?: -2015' Pap .,e 2 cf!5 Project Budget for this Project is unknown at this time. For preliminary fee purposes, the following has been assumed: 15,000 sf x $115/sf = $1,725,000 Site work: approx 15% of construction cost = $258,000 Site Paving for truck circulation: approx 30,000 sf x $6/sf = $180,01 • Civil Engineering; Allison Engineering Group (AEG) • LEED consulting services: ClS Group. (ClS) • Surveying and site topography: Furnished by Owner. Platting and rezoning. No services related to any re-zoning or re-platting are included. IMMMMUMMIMIM ILBASIC SERVICES The following is a brief list of Professional Services that we anticipate will be required and propose to provide. T is not intended to limit our scope of service, but to generally define and explain our intent to provide professiona 'I services necessary for the successful completion of the project. Basic Services are those services outlined under A f c h 1 N o c f s a P C an no i, im 0 n t e r 11 as r E) o s V g in 2 717 Wind River Lane, Ste 230 Denton, Texas 76210 �:�(T�6-6.6-9-66— Fbx 940.566M23 EXHIBIT 3 HCC Proposal June 29, 2015-edited 10-22-2015 Page 3 of 5 Section 11 of this Agreement. The services outlined in Section 11 shall be provided on a fee basis as outlined under the Section IV - Professional Fees portion of this agreement. A r c h 0 t o c f a w P 0 a n n, o r a im I n t c r I° r D o s I g n • 27 1 7 Whd Rver Lane, cite 230 Denton, Texas 76210 940,5660266 1:::cu 94G 56&0223 EXHIBIT 3 Attachment C C o n t r a - e- t -:49 i` EXHIBIT 3 a � DA10/ /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, ttroe polio ias must a endorsed. If SUBROGATION I o ,�(° , � � 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). _ E R Hadar McLaughlin Brunson Insurance A g enc y, LLP �m ... .._ 503 -8899 b 503 -121" 214� 12801 N. resswa y - -- Suite 1710 Dallas TX 75243 Rr ... � .,�.m, MAID 8 °,,... . :7 ty I.,zasa r nxxc:u K laasx ; ; " ..mmmm, ._37885 �N _ FF!A XL SxecLa r_ .__ ______ .. „_.., ...; ,.INSURED (840) 566 -0266 IN;SUrtER. n Nelson + Morgan Architects Inc. INwXItEn C °' 2717 Wind River Lane .....- Denton TX 76210 IORPcY Er..� . ...... — .......,� �—_ N UREtI F e Ww. . COVERAGES CERTIFICATE C BLSS ert ID 30430 IOD TH S IS GO CERTIFY THAT THE POI INSURANCE TED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH T INDICATED. NOTWITHSTANDING ANY REQUIREMENT„ TERM OR CONDITION OF ANY CO HIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS O SUCH SHOWN MAY HAVE BEE N REDUCED BY ID CLAIMS. . ._.. ..LIMITS �M..,�tr.._s . ,. �L Y TYPE of INSURANC E aOtJ:Y NUMBER I MwbAYYY) I-TR h _W r.N GENERAL LIABILITY EACH OCCILJ tRENCE $ COMMERCIAL GENERAL LIABILITY . . CLAIMS -MADE El OCCUR MED EXP Qw2" -lrcrl °_.. ...,.., 1 FktSa .7NAL & ADV INJURY $ GE1dI�r'y�"wI AGi RI!M "C,AI "tIu $ C;EWIL. AGGREGATE LIMIT APPLIES PER.....^ COMP /OP Ad".C" $ I.rlldy LOC POLICY I� Irf" ......_ �__- ... ._...- $ "�XR+q(3�Lr _l - AUTOMOBILE LIABILITY t 7 ktB LU LIM'd'T Lfi�Sal). ....,_...�......,$...,�.... ..... (Per person) $ BODILY INJURY ANY AUTO _,.� . ALL OWNED SCHEDULED BODILY INJURY {Poraccldent) $ AUTOS AUTOS — PICONECtiYDAArVAC9t, $ NON -OWNED HIREDAUTOS AUTOS ,eraasmrw ry .. .. ............... $ UMB AB OCCUR $m k.AC1°IEGATE ERCE 4 I.AIMS -MADE AGGROCCURRENCE m_ ...,m $ NINfDN G ._..., ,., ,...... ......m_..�..A, ...... .�,,.,. ...,�... '4°NPt SIATI,1• l.)T WORKERSCOMPENSASION i.Li E AND EMPLOYERS' UABIU Y YIN "'",1PARTNEWE�XCC:hdl1WE 4 l ALCg DR:R'�l"1 $ ANY P ROPRIE' rCJI R F>CCLUDED? NIA ' ,EACH .......... (Mandatory In N (Mandatory dew NI°i) E.C.. DISEASE_.._._. .., � ... �.. _ ................... ___�...... ..,. . ...,.. - FA EMPV a,�YNEE $" tl',»rd.�a, desc 4je urider' E.L. DIS E -PC]l ICY LIMIT $ .......^''. I:bL 1110110' I OF OPFRATNONS twdow _ _ 4/2016 AProfessional Liability Y DPR9727553 10/4/2015 10 /.... Pear Claim/ $ 1,000,000 nTaa 1 Aggregate DESCRIPTION ..._ ._....mow.... Remarks Schedule, If more space Is required) etotal -- The c p y g aggregate limit for all claims claims made professional liability overajeA snl the able. Thirty day notice presented within the policy period and is subject to a deduct' of cancellation in favor of certifcate holder. CERTIFICATE HOLIER Cm4NCELL.A`LgN EXHIBIT 3 ' ® DATE (MMIDDNYYY) CERTIFICATE OF LIABILITY INSURANCE ....m... ...WW. ......... ...J.. ...... .. 1/7/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL_ INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER .UN1wC1' Janie Bill Sanger Insurance 905 Chapman Drive P. O. Box 9 Sanger TX D INSURE Nelson +Morgan Architects, 2717 Wind River Lane Suite 230 Denton TX COVERAGES 76266 Inc. 76210 1 IN CERTIFICATE NUMBER-CL161701040 t): (940)458 -7434 janie@sangerinsurance.com rican Casual REVISION NUMBER: (940)458 -3438 NAIC # 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, _ NwsR _ m _..... AU5L'91WR Fa TYPE OF INSURANCE POLICY NUMBER .... _ ...... �.. ..... POLICY EFF POLICY EXP MM_1IXXYYYY) :. MM/DD IYYYY_] -. LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 A� CLAIMS -MADE C..�....1 OCCUR DAWJkG T(J RONI kLN P}LuEY� t (I nl v�PPlei. $ _ 300,000 X 4030949304 8/28/2015 8/28/2016 MED EXP (Anyone person) $ 10, 000 � �.. ... ........ – _ -_ ,... .... .. .... �. __.... PERSONAL 8S A DV INJURY $ 2,000,000 _,.,. GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 X POLICY ❑ JECT FI LOC _. PRODUCTS -CO – 4,000,000 MP /OP AGG $ . Ol"I�IE:R Hired and Non Owned Auto $ 1,000,000 AUTOMOBILE LIABILITY COML[I ,„" l,S.t =: LIMIT $ 1,000,000 X ANY AUTO BODILY INJURY (Per person) $ B ALL OWNED X.. SCHEDULED BA420000006339 11/30/2015 11/30/2016 BODILY INJURY (Per accident) $ AUTOS X °" AUTOS NON-OWNED X PRON "6 Y�'I y (IAMAGE $ HIRED AUTOS -- – AUTOS (For lacdoall .... _ ...... PIP -Basic $ 2,500 UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAR CLAIMS -MADE AGGREGATE $ DED RETENTION $ WORKERS COMPENSATION —7 PER I t)TH F� AND YIN ANY fi R AC3 'N(I�IC XECUTIVk' p ANY E L. EACH ACCIDENT ,,E $ 1,000,000 . ItPMLMOGd.I 8=!>;CLUOEIa'r NIA C or ht pJH) 594143371 (Mandtat y `I 6/18/2015 6/18/2016 E L DISEASE - EA EMPLOY -. ,,,..� -- I $ .._ 1, 000, 000 NI es descnbe under N.FSt INIf' +k'ION Q.iP 03'kRAT'li)NS bailow E,L. DISEASE - POLICY LIMIT $ 1100010 00 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) The General Liability policy includes a blanket Additional Insured endorsement that provides this feature only when there is a written contract between the named insured and the certificate holder that requires it. CERTIFICATE. HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Denton - Their Officials, Agents, THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Employees and Volunteers Material Management Department 901B Texas Street AUTHORIZED REPRESENTATIVE Denton, TX 76209 �_- - Jeff Springer /JBILL ........w. ...... ... ........_ ©1988 -2014 ACORD CORPORATION. All rights reserved.. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD INS025 r2n14011 EXHIBIT 3 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local overnmental entit This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. Alan Nelson /Nelson +Morgan Architects, Inc. 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 7d' business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. None Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes ® No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes ID u No D. Describe each affiliation or business relationship. _.� ........ . ...... A)iA-- 10 -22 -2015 Signature of person doing business with the governmental entity Date Adopted OW2WM07 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 1'&IM111iffidrith w ww.cityofdenton.com D EN'FON File #: ID 16 -101, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a First Amendment to a Professional Services Agreement by and between the City of Denton, Texas and Resolved Energy Consulting, LLC, for services relating to Denton Municipal Electric projects that include without limitation, Electric Reliability Council of Texas ( ERCOT), Public Utilities Commission of Texas (PUCT), and other regulatory activities respecting the City of Denton's Electric Utility; authorizing the expenditure of funds therefor; providing an effective date (File No. 5332 in the additional amount not -to- exceed $520,000; aggregating a total not -to- exceed $1,040,000). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION Council approved a Professional Services Agreement with Resolved Energy Consulting, LLC (REC) in the amount of $520,000 on August 20, 2013. In order to stay abreast of and plan for, approved and potential changes to the electric and natural gas markets, Denton Municipal Electric (DME) is recommending the approval of Amendment 1 to the Professional Services Agreement. This amendment will provide consulting services for, but not limited to, the following tasks: Task A -1 Attend ERGOT, PUC, and Other Meetings In lieu of DME funding, provide a Full Time Equivalent (FTE) to attend regulatory meetings, REC has maintained a presence for DME. Task A -2 Analyze Proposed Policies and Protocols REC will continue to review the new market design protocols and identify concerns related to DME's ability to effectively function in that market. Task A -3 Weekly Report of Regulatory and Market Activity REC will provide a weekly summary of PUCT and ERCOT activity to DME. Task A -4 Financial and Other Regulatory Compliance REC will work with DME staff and personnel on market and financial compliance issues as requested, including Sarbanes /Oxley compliance activities and Dodd -Frank compliance and Carbon Tax activities. Task B -1 Coordination with Other Market Participants REC will continue to work with other affected municipalities, organizations, cooperatives, and associations, where appropriate, to help mitigate the impacts of the market changes. City of Denton Page 1 of 3 Printed on 1/27/2016 File #: ID 16 -101, Version: 1 Task B -2 Work with Attorneys REC will continue to work with the DME legal counsel on developing positions and strategies on ERCOT related issues and to keep them up -to -date on changes that affect DME as well as challenge any positions that adversely affect DME. Task B -3 Work with DME Legislative Consultants REC will work with the DME legislative consultants to educate them on ERCOT - related market issues and to keep them up -to -date on changes that affect DME. Task C Market Analysis REC will provide research and analysis of issues addressing the electric and natural gas markets, as well as cost effective operations of DME including rates, daily operations, supply procurement, and other issues as they may arise. Task D Rate Analysis and Monitoring REC will review DME rates based on updated information that may be derived from the City's Comprehensive Annual Financial Report (CAFR), Earnings Monitoring Reports (EMR), DME budgets or planning projections. Task E Generation and Development of Cost Savings Options REC will work with DME personnel to identify revenue generating and cost savings opportunities for the rate payers of DME. Task F Gas Distribution Services REC will work with DME personnel to support development and operation of gas distribution system. Task G Other Services REC will work with DME personnel as requested to assist in other analysis and project work. PRIOR ACTION /REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 25, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a First Amendment to the Professional Services Agreement between the City of Denton and Resolved Energy Consulting, LLC in an amount not -to- exceed $520,000 for a total contract award not -to- exceed $1,040,000). PRINCIPAL PLACE OF BUSINESS Resolved Energy Consulting, LLC Austin, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the project as defined in the Professional Services Agreement. FISCAL INFORMATION These services will be funded from Denton Municipal Electric Operating Fund account 600001.7857. A second line will be added to Purchase Order 164922. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family- Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support City of Denton Page 2 of 3 Printed on 1/27/2016 File #: ID 16 -101, Version: 1 multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit 1: Public Utilities Board Draft Minutes Exhibit 2: Ordinance with Amendment Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Phil Williams at 349 -8487. City of Denton Page 3 of 3 Printed on 1/27/2016 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD January 25, 2016 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 25, 2016 at 9:02 a.m. in the Service Center Training Room at the Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Vice Chair Phil Gallivan Ex Officio Members: George Campbell, City Manager, Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA A. PUB16 -011 Consider recommendation of approval of an amendment to the multi -year Professional Services Agreement for an amount not to exceed $520,000 between Denton Municipal Electric (DME) and ReSolved Energy Consulting, LLC (REC) for DME's energy consulting needs to meet the demands of an ever - changing energy market. Attachments: Exhibit 1 - Scope of Work Board Member Russell asked if we have worked with this company before. William A. Bunselmeyer answered they have been the primary energy consultants since 1999 but were under RJ Covington. This is an amendment to an existing Professional Services Contract. Motion was made by Board Member Russell, second by Board Member Bynum with a vote 6 -0 approved. Adjournment 10:38 a.m. EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND RESOLVED ENERGY CONSULTING, LLC, FOR SERVICES RELATING TO DENTON MUNICIPAL ELECTRIC PROJECTS THAT INCLUDE WITHOUT LIMITATION, ELECTRIC RELIABILITY COUNCIL OF TEXAS (ERCOT), PUBLIC UTILITIES COMMISSION OF TEXAS (PUCT), AND OTHER REGULATORY ACTIVITIES RESPECTING THE CITY OF DENTON'S ELECTRIC UTILITY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING AN EFFECTIVE DATE (FILE NO. 5332 IN THE ADDITIONAL AMOUNT NOT -TO- EXCEED $520,000; AGGREGATING A TOTAL NOT -TO- EXCEED $1,040,000). WHEREAS, the City Council deems it necessary and appropriate and in the public interest to continue to engage the firm of Resolved Energy Consulting, LLC, a Texas Limited Liability Company, located in Austin, Texas, to provide the City with professional consulting services pertaining to Denton Municipal Electric projects that include without limitation, Electric Reliability Council of Texas (ERCOT) projects, Public Utilities Commission of Texas (PUCT) projects, and other regulatory activities respecting the City of Denton's electric utility; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services by the City of Denton, and that limited City staff cannot adequately perform the specialized professional services and tasks, with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council hereby finds and concludes that Resolved Energy Consulting, LLC is appropriately qualified under the provisions of the law, to be retained as a consulting firm for the City, respecting this engagement; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional services, as set forth in the "First Amendment to Agreement for Consulting Services;" NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble hereto are true and correct and are incorporated herewith as a part of this Ordinance. EXHIBIT 2 SECTION 2. The City Manager is hereby authorized to execute a "First Amendment to Contract by and between the City of Denton, Texas and Resolved Energy Consulting, LLC," in the additional amount of not -to- exceed $520,000, for professional consulting services pertaining to the interests of the City as hereinabove described, in substantially the form of the First Amendment which is attached hereto as Exhibit "A," which is incorporated herewith by reference. SECTION 3. The award of this First Amendment is on the basis of the demonstrated competence and qualifications of the firm of Resolved Energy Consulting, LLC, to perform the professional consulting services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided for in the attached First Amendment is hereby authorized. SECTION 5. This ordinance shall become effective upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: ,- 2 CHRIS WATTS, MAYOR DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A THE STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO CONTRACT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND RESOLVED ENERGY Y CONSULTING, LLC. _.. ........_ ...................... ......................CONTRACT #53321 THIS FIRST AMENDMENT TO CONTRACT (hereafter the "First Amendment ") to that certain Contract by and between the City of Denton, Texas and Resolved Energy Consulting, LLC. (hereafter the "Agreement ") in the original Professional Services Agreement, which were heretofore executed on 201h of August, 2013, and was approved by the Denton City Council and subsequently executed by the Denton City Manager or his duly authorized designee; and said Agreements were heretofore entered into by and between the City of Denton, Texas, a Texas Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter the "CITY "); and the firm of Resolved Energy Consulting, LLC. (hereafter "CONSULTANT ") with its offices at 11044 Research Boulevard, Suite D -230, Austin, Texas 78759; and The original Agreements provided for CONSULTANT'S services related to the Denton Municipal Electric (DME) Project that includes, without limitation, Electric Reliability Council of Texas (ERCOT), Public Utilities Commission of Texas (PUCT), and other regulatory activities respecting the City's Electric Utility, Denton Municipal Electric; attendance at such regulatory meetings; analysis of proposed policies and protocols; assist in the development of market financial and regulatory compliance; coordination with other market participants; work with outside legal and legislative consultants; market and rate analysis and monitoring; generation and development of cost savings options; support of development of natural gas pipeline distribution services, as is contained in Contract #5332 (Exhibit A). The initial agreement for the Basic Services — (Exhibit A), was approved on August 20, 2013, in the not -to- exceed amount of $520,000. The CITY and CONSULTANT further specified and agreed within Contract #5332, that additional services may be necessary to complete the project, and identified those services within Article III — Additional Services. NOW THEREFORE, the CITY and the CONSULTANT (hereafter collectively referred to as the "Parties "), in consideration of their mutual promises and covenants, as well as for other good and valuable considerations, do hereby AGREE to the following First Amendment, which amends the following terms and conditions of the said Agreements, to wit: 1 The provisions of the said Agreements are hereby amended to add the additional Agreements as follows, to wit: CONSULTANT shall provide to the CITY the Additional Professional Services in addition to the initial project, as defined in the "Scope of Work for the Professional DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A Services Agreement for Utility Consulting Services ". The individual tasks and deliverables are fully defined within the Amendment 1 - Scope of Work (Exhibit B). The additional professional services, are provided in "Exhibit B" of this First Amended Agreement, and shall become a part of the contractual requirements of Contract #5332. The total cost of these additional professional services, which include Tasks A -1, A -2, A -3, B -1, B -2, B -3, C, D, E, F and G shall not exceed $520,000. Additionally, the Contract Term will be renewed for an initial one (1) year term, with automatic renewal options for up to two (2) additional renewal periods of one (1) year each. The total professional consulting service costs shall not exceed $1,040,000 dollars. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A 2. The Parties hereto agree, that except as specifically provided for by this First Amendment, that all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations of the Parties, set forth in both the Agreements and now the First Amendment shall be, and will remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas and Resolved Energy Consulting, LLC, have each executed this First Amendment, by and through their respective duly authorized representatives and officers on this the day of .2016. "CONSULTANT" RESOLVED ENERGY CONSULTING, LLC A Limited I$oal�gliDi, Company 6(,(, �favrn c s By: e ...... ......................... BILL STARNES, PARTNER CITY OF DENTON, TEXAS A Texas Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSigned by: P 6L t �.I,i�l,�.f By: C,8,"F996 GEORGE C. CAMPBELL CITY MANAGER DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A EXHIBIT A DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F STATE OF TEXAS § COUNTY OF DENTON EXHIBIT A PROFESSIONAL SERVICES AGREEMENT FOR UTILITY CONSULTING SERVICES [File No. 5332] THIS AGREEMENT is made and entered into as of the m� day of rr ............. 2013, by and between the City of Denton, Texas, a Texas municipal corp �aUt i on, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and RESOLVED ENERGY CONSULTING, LLC., with its corporate office at 11044 Research Boulevard, Suite D -230, Austin, Texas 78759, hereinafter called "CONSULTANT;" each acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE.I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, Electric Reliability Council of Texas ( "ERCOT "), Public Utilities Commission of Texas ( "PUCT "), and other regulatory activities respecting the City's Electric Utility, Denton Municipal Electric ( "DME "); attendance at such regulatory meetings; analysis of proposed policies and protocols; assist in the development of market financial and regulatory compliance; coordination with other market participants; work with outside legal and legislative consultants; market and rate analysis and monitoring; generation and development of cost savings options; support of development of natural gas pipeline distribution services. ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: A. The CONSULTANT shall perform all those services as are necessary and as described in the OWNER's "Scope of Services" (being two pages in length), which is attached hereto and made a part hereof as Exhibit "A." DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT B, CONSULTANT shall perform all those services set forth in individual task orders, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. C. If there is any conflict between the terms of this Agreement and the exhibits attached this Agreement, the terms and conditions of this Agreement will control over the te and conditions of the attached exhibits or task order& I ARTICLE III . ......... ........... ADDITIONAL SERVICES Any additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above-described Basic Services, will be described in a separate written agreement, agreed to by both parties. AW1f111Q,LEJ.V PERIOD OF SERVICE A. COMPENSATION rERMS: "Direct Non-Labor Expense" is defined as that expense for any assigm-nent incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "B" which is attached hereto and made a part of this Agreement a total fee, including reimbursement for direct non-labor e2Lpenscs not-to-exceed $520,000, Partial payments to the CONSULTANT will be made on the basis of detailed month I statements rendered to and approved by the OWNER through its City Manager or h designee; however, under no circumstances shall any monthly statement for servjc exceed the value of the work performed at the time a statement is rendered. m esmn Envelope ID: mRGagDm4m&m6ggmm&» £XHI7f2 » « « »,.w,< :theOW to pay which » is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terins of this Agreement, The OWNER shall not be «m%c,em&e» ¥m ..w.� .�. «e.....§26. �»L required to make any payments t «CONSULTANT when th CONSULTANT is in efault under this Agreement. C. ADDITIONAL < 2, SERVICES: For v ,«« m « «l services authorized w in « <; ; � the OWNER §: Article §L the CONSULTANT shall be paid based w�c2: ? «» «222§2: "»2 Payments fo additional services shall » : due and t&?» e upon submission bythe CONSULTANT, and shall be in accordance with subsection V,B hereof. Statements shall not be submitted more frequently than month) D PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by interest "Prompt : > w», v v,«�x mr,z«specified « « « :a »«J «� w specified 2 dmw statutory law, Section 2251.025, Texas Goverriment Code.. The CONSULTANT ig exercise reasonable a» - xddue diligence m discovering and pomp/ reporting to the OWNER defects or deficiencies in <, of the CONSULTANT or any subcontractors or subconsultants. A ' � V'7 O DOCUMENTS £ S r � DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT A&M-L-E-VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not an employee of the OWNER. CONSULTANT shall not have or claim any right arising fro] employee status. M Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved, During the performance of the services under this Agreement, CONSULTANT shall !n'g,intaiu mu � i'n-Y&r=-.e Go-nwaiy 17"'�;�;W�ze"— i-o of Texas by the State Insurance Conimission or any successor agency that has a rating with Best 1R,,,,ate Carriers of at least an "A-" or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $ 100,000 for each accident, C Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $ 100,000 for each accident. DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured to the extent that is legally possible, CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies ro one party's disagreement, may include the other party to the disagreement without the other's approval. A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. " ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE XIV NOTICES All notices, communications, and reports required or pennitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: Resolved Energy Consultants, LLC 11044 Research Boulevard, Suite D-230 Austin, Texas 78759 Attn.- Bill Starnes, Partner City of Denton, Texas George C. Campbell, City Manager 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to who such notice is given, or within three (3) days' mailing. ARTICLE XV ARTICILEAVII SEVERABILITY um DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT The CONSULTANT shall comply with all federal, state, and local laws, rule] regulations, and ordinances applicable to the work covered hereunder as they may now read hereinafter be amended. Z I 1 11 11, I In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or any potential conflict of interest that may arise during the term of this Agreement, B. All services required hereunder will be performed by the CONSULTANT or under ilv, supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. I'll, 11 1 1 FAM I I The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. OWNER is relying on the expertise and professional qualifications of CONSULTANT. N NM DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT MM B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. C. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall • Bill Starnes, Partner and his staff. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. D. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. E. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Prqject, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. F. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Mauager, and CONSUL "ANT has executed this Agreernent, tbrough its d1uly authorized undersigpied of on this the day of u AL, 5& .3. � 201 "OWNER" CITY OF DENTON, TEXAS A Texas Municipal Corporation By: ....... ... .... GEOR(41' CAMPBELL, CITY MANXXIER, ATTEST: JENNIFER WALTERS, CITY SECRETARY 0 APPI T Vl'^ ' J) A,5,1`0 LEGAL FORM: N I A ��BURGESS, CITY ATTORNEY By ATTEST: 0 "CONSULTANT" RESOLVED ENERGY CONSULTING, LLC A Limited Liability Company By: ............ _1� .......... BILL STARNES, PARTNER Page 9 DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS 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. 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 ofthe Contract, or longer, ifso noted: Each policy shall be issued by a company authorized to do business in the State Texas with an A.M. Best Company rating of at least A--LV-1-1-0—r-b—e—tt-e-r-j- I Any deductibles or self-insured retentions shall be declared in the bid proposal. In requested by the City, the insurer shall reduce or eliminate such deductibles self-insured retentions with respect to the City, its officials, agents, employees volunteers; or, the contractor shall procure a bond guaranteeing payment of losses aing, related investigations, claim administration and defense expenses. Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. anm 21MI 41,011 alomm DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the fiollowing marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, ifso note& General Liability insurance with combined single limits of not less than $1,000,000 shall be provided and maintained by the Contractor, The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: 0 Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: ME M-1 1, damage resulting from explosion, collapse or underground (XCU) exposures. r, a 'o'n'tuftim" jg% "ru- nutep'A qL [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 rmeg t f the o eration maintenance and use of Ww"160060M IMUry 2 e r�iilr.ltlf.ilujlt,#Lil'O,Itt,*Wliti'Litull'i't'siol'it��41'et,tijkjt,l"r.,),f,lu,sui-i�,gl,l'ai,o-),',I,�l�t,#-,Itl*lqttj�o,,]LYICJ"tllilallflmm 30�� IM4071"JIMMIT M DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT [XI Workers' Compensation Insurance ��r"llllllllll,l III �Iilillill 11 1 1 11111111111111 11 i I �1, T '11V IM :1114, 1 41,111"S 01111111 Jill III r 1111111111111: 111 iiiiiiiiiillill Nil Hill Professional liability insurance with limits not less than $1,000,000 per claim wi respect to negligent acts, errors or omissions in connection with professional services required under this Agreement. I Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall provided. Such policy shall include as "Named Insured" the City of Denton and subcontractors as their interests may appear. I Commercial Crime 'rovi es coverage tor e o isappearance oY the premises, burglary of the premises, and employee fidelity. The employee fideli portion of this coverage should be written on a "blanket" basis to cover all employe including new hires. This type insurance should be required if the contractor has acce to City funds. Limits of not less than _ . ....... each occurrence are required I Additional Insurance '7=er insurance may 67 requi,111 M—L-0 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, DocuSign Envelope ID: 26F44295-2D59-4B3A-9368-F8F4D46B528F EXHIBIT Workers' Compensation Coverage for Building or Construction Projects Gove A. Definitions: Certificate of coverage ("certificate ")-A copy of a certificate of insurance, certificate of authority to self-insure issued by the commission, or a covera agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statuto workers' compensation insurance coverage for the person's or entity's employell 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 t project until the contractor's/person's work on the project has been co, accepted by the governinental entity. 1) a certificate of coverage, prior to that person beginning work on the project, so ths governmental entity will have on file certificates of coverage showing coverag-4 for all persons providing services on the project; and OM DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A 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. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entities the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A RESOLVED Exhibit A Scope of Services Task A ERCOT. PUC and Other Regulatory Activities Task A -1 Attend ERCOT, PUC, and Other Meetings 1. REC will keep abreast of activities at both ERCOT and the PUC and will attend meetings, as directed by DME related to existing market operations and implementation of the nodal market design. 2. REC will participate in meetings, as necessary, to represent DME interests. Meetings to be attended include, but are not limited to, the Wholesale Market Subcommittee ( "WMS "), Technical Advisory Committee ( "TAC "), and ERCOT Board meetings as appropriate. 3. REC will work with DME to develop advocacy positions and strategies for working with other ERCOT stakeholders. 4. REC will analyze and monitor the activity of other regulatory agencies as directed by DME including, but not limited to, the Texas Railroad Commission ( "RRC ") and Texas Commission on Environmental Quality ( "TCEQ ") which are agencies that impact utility operations from time to time, among others. Task A -2 Analyze Proposed Policies and Protocols 1. REC will analyze proposed market design protocols and identify and report concerns regarding DME's ability to effectively function in the ERCOT market. 2. REC will meet with ERCOT, state regulatory agencies and other stakeholders, as requested by DME, to discuss and negotiate, if necessary, nodal market issues and to mitigate negative impacts on DME. Task A -3 Financial and other Regulatory Compliance 1. REC will work with DME to develop market and financial compliance and risk management procedures as well as address issues, as needed, including, but not limited to, Sarbanes -Oxley and Dodd -Frank compliance activities. Task B Working With Other Affected Parties Task B -1 Coordination With Other Market Participates 1. REC will coordinate with other affected municipalities, organizations, cooperatives, and associations within ERCOT, where appropriate, to mitigate the adverse impacts of market protocol revisions. 2. REC will participate in meetings, with other market participants, to develop strategy and advocacy positions. Page 18 DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A 3. REC will develop materials, as needed, to assist in educating legislators, media and other market participants on nodal market issues. Task B -2 Work With Legal Council 1. REC will work with DME in -house and external legal counsel to develop ERCOT market positions and strategies to keep them apprised of changes that could potentially affect DME. 2. REC will work with DME and legal counsel to assist them in preparing any challenges to nodal market design or ERCOT proposed implementation plans that may adversely affect DME. Task B -3 Work With DME Legislative Consultants 1. REC will work with DME legislative consultants as necessary, to educate them on ERCOT - related market issues and to apprise them of proposed market changes that could potentially affect DME. Task C Market Analysis 1. At the request of DME, REC will provide research and analysis of issues regarding the electric market, natural gas market, and operations of the nodal market including rates, DME operations, supply procurement, and other issues as they may arise. 2. REC will provide reports and analysis of its efforts and work with DME on issues analysis and response. Task D Rate Analysis and Monitoring 1. At the request of DME, REC will review DME retail electric rates based on updated information that may be derived from the City's CAFR, Earnings Monitoring Reports ( "EMR "), DME budgets or planning projections, other information provided by DME, or other sources, to insure DME rates are effectively covering actual or anticipated DME expenses. REC will inform DME of the findings from any review. 2. At the request of DME, REC will review DME's Transmission Cost of Service ( "TCOS ") rates and revenues based on TCOS project additions and PUC reviews and report findings and provide strategies for TCOS rate filings and adjustments. Page 19 DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A Task E Generation and Development of Cost Savings Options 1. REC will identify revenue generating and cost savings opportunities for DME ratepayers based on current or proposed changes in regulations and legislation affecting electric utility operations. As appropriate, REC will analyze proposed changes and quantify the rate savings opportunities for ratepayers whenever possible. As directed by DME, and where appropriate, REC will work with outside parties to effectuate the implementation of strategies regarding revenue generating and cost savings opportunities. 2. REC will perform acquisition and /or divestiture analyses of physical or contractual assets that could potentially provide cost savings or stabilize rates for the DME ratepayers. REC will work with DME and outside parties in the implementation of identified strategies, Task F Natural Gas Distribution Services REC will work with DME personnel to support development and operation of its industrial natural gas pipeline distribution system. REC's work will initially focus on, but not be limited to, development and maintenance of tariffs and rate schedules for gas distribution services, policies and procedures for nominations, scheduling of gas supplies and/or transportation, terms of service, and contracts for natural gas sales and distribution. In addition, REC will assist DME in developing procedures to administer and maintain compliance with contracts and regulatory reporting requirements and other duties as requested by DME. Task G Other Services 1. REC will assist DME with other analyses and project work as directed by DME. Page 20 DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A RESOLVED ENERGY CONSULTING FEES FOR SERVICES Professional and support services shall be billed at the following rates: Title Managing Director $250.00 Executive Consultant $240.00 Sr. Management Consultant $225.00 Management Consultant $205.00 Sr. Consultant $190.00 Consultant $175.00 Assistant Consultant $160.00 Technical Assistant $125.00 Research Assistant $ 95.00 Data Specialist $ 85.00 Administrative Assistant $ 60.00 Rate Exhibit B The above rates shall be adjusted each year, commencing January 1, 2012, to reflect the change in rates officially established by Resolved Energy Consulting. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at rates for such services as determined from time to time and officially established by ReSolved Energy Consulting. All travel, food, lodging, and other work - related expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost. Automobile mileage shall be billed at the mileage rate as published by the Internal Revenue Service from time to time. Client shall pay to ReSolved Energy Consulting any applicable sales tax, if in fact there is any sales tax lawfully owing, which arises from, and becomes due and owing regarding services performed by Resolved Energy Consulting. Page 21 DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A EXHIBIT B DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F �ji r r Scope of Services Task A ERCOT, PUC and Other Regulatory Activities Task A -1 Attend ER "O "I' PUC and Other Meetin s 1. REC will keep abreast of activities at both ERCOT and the PUC and will attend meetings, as directed by DME related to existing market operations and implementation of the nodal market design. 2. REC will participate in meetings, as necessary, to represent DME interests. Meetings to be attended include, but are not limited to, the Wholesale Market Subcommittee ( "WMS "), Technical Advisory Committee ( "TAC "), and ERCOT Board meetings as appropriate. 3. REC will work with DME to develop advocacy positions and strategies for working with other ERCOT stakeholders. 4. REC will analyze and monitor the activity of other regulatory agencies as directed by DME including, but not limited to, the Texas Railroad Commission ( "RRC ") and Texas Commission on Environmental Quality ( "TCEQ ") which are agencies that impact utility operations from time to time, among others. Task A -2 Analyze Proposed Policies and Protocols 1. REC will analyze proposed market design protocols and identify and report concerns regarding DME's ability to effectively function in the ERCOT market. 2. REC will meet with ERCOT, state regulatory agencies and other stakeholders, as requested by DME, to discuss and negotiate, if necessary, nodal market issues and to mitigate negative impacts on DME. Task A -3 Financial and other Regulatory Compliance 1. REC will work with DME to develop market and financial compliance and risk management procedures as well as address issues, as needed, including, but not limited to, Sarbanes -Oxley and Dodd -Frank compliance activities. Task B Working With Other Affected Parties Task B -1 Coordination With Other Market Participates 1. REC will coordinate with other affected municipalities, organizations, cooperatives, and associations within ERCOT, where appropriate, to mitigate the adverse impacts of market protocol revisions. 2. REC will participate in meetings, with other market participants, to develop strategy and advocacy positions. REC will develop materials, as needed, to assist in educating legislators, media and other market participants on nodal market issues. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F t � Task B -2 Work with Legal Council 1. REC will work with DME in -house and external legal counsel to develop ERCOT market positions and strategies to keep them apprised of changes that could potentially affect DME. 2. REC will work with DME and legal counsel to assist them in preparing any challenges to nodal market design or ERCOT proposed implementation plans that may adversely affect DME. Task B -3 Work with DME Legislative Consultants 1. REC will work with DME legislative consultants as necessary, to educate them on ERCOT - related market issues and to apprise them of proposed market changes that could potentially affect DME. Task C Market Analysis 1. At the request of DME, REC will provide research and analysis of issues regarding the electric market, natural gas market, and operations of the nodal market including rates, DME operations, supply procurement, and other issues as they may arise. 2. REC will provide reports and analysis of its efforts and work with DME on issues analysis and response. Task D Rate Analysis and Monitorine 1. At the request of DME, REC will review DME retail electric rates based on updated information that may be derived from the City's CAFR, Earnings Monitoring Reports ( "EMR" ), DME budgets or planning projections, other information provided by DME, or other sources, to insure DME rates are effectively covering actual or anticipated DME expenses. REC will inform DME of the findings from any review. 2. At the request of DME, REC will review DME's Transmission Cost of Service ( "TCOS ") rates and revenues based on TCOS project additions and PUC reviews and report findings and provide strategies for TCOS rate filings and adjustments. 3. At the request of DME, REC will work with DME to establish new rates and /or programs to promote energy efficiency, reduce peak demand and /or provide savings opportunities to DME member customers. Task E Generation and Development of Cost Savings Options 1. REC will identify revenue generating and cost savings opportunities for DME ratepayers based on current or proposed changes in regulations and legislation affecting electric utility operations. As appropriate, REC will analyze proposed changes and quantify the rate savings opportunities for ratepayers whenever possible. As directed by DME, and where appropriate, REC will work with outside parties to effectuate the implementation of strategies regarding revenue generating and cost savings opportunities. 2. REC will perform acquisition and /or divestiture analyses of physical or contractual assets that could potentially provide cost savings or stabilize rates for the DME ratepayers. REC will work with DME and outside parties in the implementation of identified strategies. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A RESOLVED ENERGY CONSULTING Task F Natural Gas Distribution Services 1. REC will work with DME personnel to support development and operation of its industrial natural gas pipeline distribution system. REC's work will initially focus on, but not be limited to, development and maintenance of tariffs and rate schedules for gas distribution services, policies and procedures for nominations, scheduling of gas supplies and /or transportation, terms of service, and contracts for natural gas sales and distribution. In addition, REC will assist DME in developing procedures to administer and maintain compliance with contracts and regulatory reporting requirements and other duties as requested by DME. Task G Other Services 1. REC will assist DME with other analyses and project work as directed by DME. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F n� m r Exhibit B FEES FOR SERVICES Professional and support services shall be billed at the following rates: Title Hourly Rate Managing Director $250.00 Executive Consultant $240.00 Sr. Management Consultant $225.00 Management Consultant $205.00 Sr. Consultant $190.00 Consultant $175.00 Assistant Consultant $160.00 Technical Assistant $125.00 Research Assistant $ 95.00 Data Specialist $ 85.00 Administrative Assistant $ 60.00 The above rates shall be adjusted each year, commencing January 1, 2016, to reflect the change in rates officially established by ReSolved Energy Consulting. Reproduction, printing, communications, computer services, and other miscellaneous support services shall be billed at rates for such services as determined from time to time and officially established by ReSolved Energy Consulting. All travel, food, lodging, and other work - related expenses, except automobile mileage, associated with the provision of services hereunder shall be billed at cost. Automobile mileage shall be billed at the mileage rate as published by the Internal Revenue Service from time to time. Client shall pay to ReSolved Energy Consulting any applicable sales tax, if in fact there is any sales tax lawfully owing, which arises from, and becomes due and owing regarding services performed by Resolved Energy Consulting. DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A BUSINESS INFORMATION DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F EXHIBIT A .. . ... _ ....�. �_ . _ ... ...... CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local overtttttettt:al etttity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. L L 7 p with person �. entity. 1 Name of w� has abusiness relatio�nsh� ��h� local U � �� ...... _.... _..... ..................... .. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the of °i iitalNfiled t m tiomaire becomes i i ic 0111plete or inaccurate.' 3 Name of local government officer with whom filer has an employment or business relationship. N14 Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? 'u ] Yes EJ No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes No D. Describe each affiliation or business relationship. ......_ I have no Conflict of Interest i4 tto disclose. 5 i Si - ature of person ...._ ...... .. _.._ gn p on doing business with the governmental entity Date b-- it - ( (°'t C . 5 A&AJL% -S DocuSign Envelope ID: 26F44295- 2D59 -4B3A- 9368- F8F4D46B528F Client #• 94429 X I 14RESOLENE DATE (Mm/DDmYV) ACORD,, CERTIFICATE OF Lfkgkf - INSURANCE 3/16/2015 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 cewrlific:ate holder is an Ab, 171iTIONUAL" INSURED, the poI'Icy(tes) 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 MMTA T NAM(.: Wortham Insurance & Risk Mgmt. PHONE 512 453 -0031 rAX 512 453 -0041 iA C, No, Extw ......... - tACC, N� 221 West 6th Street, Suite1400 E-MAIL Austin, TX 78701 . ADDRESS "'__ 512 tin, TX 31 INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Travelers Casualty Ins Co of Am 19046 ...... — . .... ----- ......... ........... ............. .. INSURER y...,.. ......r- .__......_ ..- ...... _......,. INSURED Travelers Indemnity Company 25658 ReSolved Energy Consulting LLC _— _ ____ .__....__... _ .._._� --- - - - - -- IN'1URert C . Farmington Casualty Company 41483 11044 Research Blvd, A420 _ — INSURERD: Westchester Fire Insurance Comp 10030 Austin, TX 78759 ..... _ .. ®., INSURER E: INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. N RR TYPE OF INSURANCE .. .. I19SR,XD POLICY NUMBER MMIDDFYFY (MMdD£.b(°YYY) (3/18/2015 Pog�IcYExt� umlrs ..... ...... GENERAL LIABILITY O3/18/2O1 A 6800DO2089042 EACH OCCURRENCE $1 000 000 X COMMERCIAL GENERAL LIABILITY $.300 000 ......_. CLAIMS -MADE X� OCCUR "Bi.C"V8aacrupr MED EXP (Anyone person $ 5,000 PERSONAL & ADV INJURY $1,000,,000 GENERAL AGGREGATE ........... ........ ,........_, -- -- $2,000,000 — ........_ .......... ..._... - - - - -- GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $2,000,000 I Jac......... l 1 LOC ...... $ ........ ..._POLICY , , AUTOMOBILE LIABILITY C�,i'Iw6B31NL' SINGLE LllwlrT ANY AUTO BODILY INJURY (Per person) $ _ ALL OWNED SCHEDULED ........ ............... .... _. _ .. -- BODILY INJURY (Per accident) - --- .......,,..... .......... $ - AUTOS AUT OS NON -OWNED ...- ......_ .... .............�..... reccdenlDAMAGL _,,., ....... ........ ... ..._. $ ........ - HIRED AUTOS AUTOS -(- �_ - -- ...... ....... .... ........................................... — ................ ... $ ..B -- -- ._ .._........— y ...,.. ,,,......5, 03/18/201 X X OCCUR CUPOD02134042 3/18/201 .. EXCESS LIABAB �.. " " "..1 CLAIMS -MADE AGGREGATE $000,000,... QQO 000 DED X� RffE TION$5000 ......_ _ ,,$ C WORKERS COMPENSATION IFUB4378T824 3/1$/2015 O3/18/2O1 WCSTATU- 110TH. TORY LIMIT$ AND EMPLOYERS' LIABILITY YIN _ :ER _ ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT E.L. $1,.00OR000 OFFICER/MEMBER EXCLUDED? ® N/A (Mandatory In NH) I'll E.L. DISEASE - EA EMPLOYEE $1,,000,000_ If yes, describe under DESCRIPTION OF OPERATIONS below — — — E.L. DISEASE - POLICY LIMIT _ — $1 000,000 D E &O Liability G2437578AO02 3/18/2014 03/18/201 2..... 0 ,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) CERTIFICATE HOLDER CANCELLATION City Of Denton SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE y THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City Manager ACCORDANCE WITH THE POLICY PROVISIONS, 215 East McKinney St Denton, TX 76201 AUTHORIZED REPRESENTATIVE r ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) 1 of 1 The ACORD name and logo are registered marks of ACORD #S5256491M517837 14MXJ City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -103, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving the sale of (i) an approximate 2.902 acre tract of land, and (ii) an approximate 24.293 acre tract of land, both being situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas, to the successful bidder, Atmos Energy Corporation, a Texas and Virginia corporation for the total consideration of $1,244,668.00; authorizing the City Manager to execute a Contract of Sale between City of Denton, ( "Owner ") and Atmos Energy Corporation ( "Buyer "), further; in accordance with Texas Local Government Code 253.001, to execute a deed to Atmos Energy Corporation, together with any other documents necessary to sell and convey said real property; and providing and effective date (Bid 5994 -Sale of Real Property Located in Pecan Creek Area). BACKGROUND The Wastewater Department has requested authorization to dispose of the subject property as excess property. The identified property was originally acquired as part of a 245 -acre master tract purchased by the City under Deed dated 3/24/1997 (Robert W. Callahan, et al). The conveyance was subject to an existing lease (11/6/1966) between the Callahan's (Lessor) and Lone Star Gas Company (Lessee), which addressed a larger area, however; specifically set out a 6.89 -acre tract, which later developed into the Lake Dallas Natural Gas Storage facility. The City of Denton entered into an Amendment of Lease with ENSEARCH Corporation (formerly Lone Star Gas Company) dated 6/17/1997. The gas facility tract was platted in 2012 by the City of Denton as Lot 1, Block 1, Lake Dallas Storage Addition. Standard City of Denton procedures were utilized to conduct the sale of the excess property. An Invitation for Bid (IFB) was published on November 20, 2015, with an opening date of December 22, 2015 (Real Property Sealed Bid 45994). IFB notices were advertised in the local paper and posted on the internet. One response was received - Atmos Energy Corporation is the successful bidder with a bid of $1,244,668.00 (minimum bid having been set at $1,185,500.00). Atmos Pipeline -Texas ( "Atmos ") operates the Lake Dallas Natural Gas Storage facility. Atmos has invested over $40 million dollars into facility upgrades in the past five (5) years. In 2013 Atmos began acquisition of adjacent tracts of land creating a buffer, which currently runs roughly from the natural gas facility (leased property), north to McKinney and westerly along McKinney to the McDonnell Highlands Subdivision. Currently the buffer is 105 acres. The purchase of the additional acreage from the City will allow assemblage of the natural gas (leased) facility and existing buffer, while closing current ownership gaps in the configuration of the facility's potential footprint. The total acreage buffeting the facility will increase Atmos Energy Corporation's facility to approximately 132.45 acres. City of Denton Page 1 of 2 Printed on 1/28/2016 File #: ID 16 -103, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 22, 2015- Closed Session briefing was conducted with the Public Utilities Board July 21, 2015- Executive Closed Session, briefed City Council September 1, 2015- Executive Closed Session, briefed City Council RECOMMENDATION Staff recommends approval of the proposal from Atmos Energy Corporation in the amount of $1,244,668.00. ESTIMATED SCHEDULE OF PROJECT The contract for sale will be executed upon Council approval. FISCAL INFORMATION The proceeds from the sale of the property will be deposited into Wastewater Operating Fund revenue account# 6400.8160. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit l: Location map Exhibit 2: Site Map Exhibit 3: Ordinance With Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Paul Williamson at 349 -8921. City of Denton Page 2 of 2 Printed on 1/28/2016 EXHIBIT I LOCATION MAP DOWNTOWN DENTON irrfis j 2.920 Ac. 2.4.2.9.3 Ac. JTS LIJ/ N w E Pecan Creek Area: Excess Property Tracts S 3,300 1,650 0 3,300 6,600 9,900 Exhibit 1 to the CC AIS i Feet EXHIBIT 2 SITE MAP N w E Pecan Creek Area: Excess Property Tracts S 840 420 0 840 1,680 2,520 Exhibit 2 to the CC AIS Feet EXHIBIT 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING THE SALE OF (1) AN APPROXIMATE 2.902 ACRE TRACT OF LAND, AND (2) AN APPROXIMATE 24.293 ACRE TRACT OF LAND, BOTH BEING SITUATED IN THE G. WALKER SURVEY, ABSTRACT NO. 1330, CITY OF DENTON, DENTON COUNTY, TEXAS, TO THE SUCCESSFUL BIDDER, ATMOS ENERGY CORPORATION, A TEXAS AND VIRGINIA CORPORATION FOR THE TOTAL CONSIDERATION OF $1,244,668.00; AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT OF SALE BETWEEN CITY OF DENTON ( "OWNER ") AND ATMOS ENERGY CORPORATION ( "BUYER "), FURTHER; IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE 253.001, TO EXECUTE A DEED TO ATMOS ENERGY CORPORATION, TOGETHER WITH ANY OTHER DOCUMENTS NECESSARY TO SELL AND CONVEY SAID REAL PROPERTY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City finds that it is in the best interest of the City to accept the proposal from Atmos Energy Corporation to purchase the property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS ORDAINS: SECTION 1. The City Manager, or his designee, is authorized to approve Bid No. 5994, and execute a Real Estate Contract, Deed Without Warranty, and any other documents necessary for the disposition of (a) an approximate 2.902 acre tract of land, and (b) an approximate 24.293 acre tract of land, both being situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas. The Real Estate Contract, which includes the Deed Without Warranty, is attached as Exhibit "A ". SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of February, 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Exhibit A EXHIBIT 3 REAL ESTATE CONTRACT (Pecan Creek) This Real Estate Contract (Contract) is made by and between the City of Denton, a "texas home rule municipal corporation (Seller) and Atmos Energy Corporation (name) , (entity type, if applicable) (Buyer). Article 1. Purchase and Sale 1.1. Seller agrees to sell and convey and Buyer agrees to purchase and pay for the fee simple interest in the Property. Property means that real property that is legally described in the attached Exhibit "A ". SelIer will sell and convey the Property together with all buildings, improvements and fixtures and all of Seller's rights, privileges and appurtenances pertaining to the Property subject to the reservations set forth in the Deed Without Warranty attached as Exhibit "B ". 1.2. This Contract is subject to approval by the City Council of the City of Denton such approval indicated by signature of Seller's representatives to this Contract. 1.3. Seller is a tax - exempt entity. Liability for, and payment of rollback taxes, if any, shall be the responsibility of Buyer. 1.4. Sale of the Property shall be by the attached Deed Without Warranty. Article 2. Sales Price 2.1. At or before Closing, Buyer will pay Seller the Sales Price for the Property in the amount of $ 1,244,668.00 . Buyer will pay the Sales Price in cash, certified check, cashier's check or wire transfer. This Contract is not contingent upon Buyer obtaining financing. 2.2. Buyer must submit a cashier's check in the amount of five percent (5 %) of the Sales Price payable to Buyer with this Contract as Earnest Money. Earnest Money will be applied to the Sales Price at Closing. ARTICLE 3. SELLER'S REPRESENTATIONS AND WARRANTIES 3.1. Seller represents and warrants to Buyer that Seller has the full right, power and authority to enter- into and perform its obligations under this Contract. 3.2. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTY OR ANY INFORMATION DELIVERED BY SELLER TO BUYER IN CONNECTION WITH THE PROPERTY. BUYER IS PURCHASING THE PROPERTY AS IS WITH ALL FAULTS AND DEFECTS, KNOWN OR UNKNOWN, PATENT OR LATENT, WITHOUT ANY REPRESENTATION OR WARRANTY, ORAL OR WRITTEN, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, MERCHANTABILITY, SUITABILITY OR QUALITY, AND IN SOLE RELIANCE ON BUYER'S OWN INDEPENDENT INSPECTION, INQUIRY OR INVESTIGATION. SELLER IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR Pagel of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, ZONING, PLATTING, SUBDIVISION, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS, VALUATION, GOVERNMENT APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTERS OR THINGS RELATING TO OR AFFECTING THE PROPERTY. SELLER IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY HIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO ANY IMPROVEMENTS OF THE PROPERTY CONVEYED; AND THE MANNER OR REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY IMPROVEMENTS. THERE, ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY OTHER PERSON. BUYER HAS NOT RELIED ON ANY INFORMATION OTHER THAN BUYER'S INSPECTION. GRANTEE RELEASES SELLER FROM LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, INCLUDING LIABILITY (1) UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA), THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT, AND THE TEXAS WATER CODE; OR (2) ARISING AS THE RESULT OF THEORIES OF PRODUCT LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS OR CHANGES TO EXISTING LAWS ENACTED AFTER THE EFFECTIVE DATE OF THE PURCHASE CONTRACT THAT WOULD OTHERWISE IMPOSE ON SELLER IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY. THIS RELEASE APPLIES EVEN WHEN THE ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY RESULT FROM SELLER'S OWN NEGLIGENCE OR THE NEGLIGENCE OF SELLER'S REPRESENTATIVE. Article 4. Buyer's Representations and Warranties 4.1. Buyer represents and warrants to Seller that all requisite action necessary to authorize Buyer to enter into this Contract has been obtained, and Buyer has the full right, power and authority to purchase the Property as provided in this Contract and to carry out Buyer's obligations under this Contract. Page 2 of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 Article 5. Closing 5.1. Closing shall be held at the City of Denton Materials Management /Purchasing Office located at the City of Denton Service Center, 901 -B Texas St., Denton, Texas 76209, no later than thirty (30) days from the Effective Date. The Closing will be scheduled by the City. 5.2. At Closing, Seller shall: a. Deliver to Buyer the duly executed and acknowledged Deed Without Warranty attached as Exhibit "B ". b. Deliver possession of the Property to Buyer; and 5.3. At Closing, Buyer shall: a. Pay the Sales Price in good funds acceptable to the Seller; b. Pay al l costs attributable to the Buyer as part of the transaction; and C. Execute and deliver to Seller any notices, statements, certificates, affidavits, releases and other documents required by this Contract or the Seller necessary for the Closing of the sale. Article 6. Default 6.1. In the event Buyer fails to fully and timely perform any of its obligations under this Contract or fails to close for any reason except Seller's prior material default, Seller may, as its sole and exclusive remedy, terminate this Contract and receive the Earnest Money as liquidated damages. 6.2. In the event Seller fails to fully and timely perform any of its obligations under this Contract or fails to close for any reason except Buyer's prior material default, Buyer may, as its sole and exclusive remedy, terminate this Contract and receive the return of the Earnest Money. Article 7. Miscellaneous 7.1. Any notice required or permitted to be delivered by this Contract shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested to: Seller: City Manager City of Denton 215 E. McKinney St. Denton, Texas 76201 Atmos Energy Corporation Attention: Legal Department 5420 Lyndon B Johnson Freeway Dallas, TX 75240 Page 3 of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 7.2. This Contract is to be construed in accordance with the laws of the State of Texas. All obligations of the Parties are to be performed in Denton County, Texas. 7.3. This Contract is binding on the Parties, and their respective representatives, successors and permitted assigns. 7.4. If any term or condition of this Contract shall be held to be invalid or unenforceable, the remainder of this Contract shall not be affected, and this Contact shall be construed as if such invalid or unenforceable provision had never been included in the Contract. 7.5. The Parties acknowledge that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract. 7.6. This Contract includes the entire agreement of the Parties and may only be modified in writing. 7.7. Buyer may not assign this Contract without the written consent of Seller. 7.8. Time is of the essence in the performance of this Contract. Strict compliance with the times for performance of this Contract is required. 7.9 The Effective Date of this Contract is the date this Contract is signed by the Seller. -- This space left blank intentionally -- Page 4 of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 BUYER: Atmos Energy Corporation Printed Name of Buyer 0411g44A.— Jeff Hardgrave i nature of Buyer Vice President, Atmos Pipeline - Texas, a division of Atmos Energy Corporation Title of Buyer (if Buyer is an entity) Signed on the 18 day of December _ 2015. -- The space left blank intentionally -- Page 5 of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 SELLER: CITY OF DENTON. A Texas home -rule municipal corporation George C. Campbell, City Manager, under the authority granted to him by Ordinance No. Signed on the day of , 2015. ATTEST: Jennifer Walters, City Secretary APPROVED AS TO FORM: A a rge , City Attorney Page 6 of 6 - Real Estate Contract (City of Denton; Pecan Creek) EXHIBIT 3 EXHIBIT A PROPERTY DESCRIPTION — TRACT 1 Being 2.920 acres of land situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas and being a portion of a called 245.00 acre tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997- 19639, Deed Records of Denton County, Texas (D.R.D.C.T.), said 2.920 acres of land being more particularly described by metes and bounds as follows: COMMENCING at a 1/2 inch iron rod with cap stamped "H &N RPLS 1949", found in the north line of said City of Denton tract at the southeast corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013- 121184, D.R.D.C.T., and also being the southwest corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013- 110116, D.R.D.C.T., from which a 1/2 inch iron rod with cap stamped "Metroplex 1849 ", found in the common line of said ATMOS tracts, bears N 01 °39'00 E, 893.21 feet and from which a T -Bar found with cap stamped "Lonestar Survey" at the northwest corner of Lot 1, Block 1, Lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas (P.R.D.C.T.), bears S 56 °28'36" E, 711.51 feet; THENCE along the northerly line of said City of Denton tract and along the south and west lines of said ATMOS Energy Corp. tract (Inst. No. 2013 - 121184, D.R.D.C.T.), the following courses and distances; • 87'18'21 " W, a distance of 262.75 feet to a 4" steel fence post found; • 88 022'44" W, a distance of 295.18 feet to a 4" steel fence post found; S 75 °08'11" W, a distance of 212.66 feet to a 8" wood fence post found; N 89 °2543" W, a distance of 145.43 feet to a 1/2 inch iron rod found with cap stamped "H &N RPLS 1849 "; N 83 °32'04" W, a distance of 69.18 feet to a 1/2 inch iron rod found with cap stamped "H &N RPLS 1849 "; N 31 °39'10" E, a distance of 21.53 feet to a 1/2 inch iron rod found with cap stamped "H &N RPLS1849 "; N 20 °08'54" E, a distance of 97.40 feet to a 1/2 inch iron rod found with cap stamped "H &N RPLS 1 849 "; N 48 °05'35" W, a distance of 52.55 feet to a 60D nail found at the POINT OF BEGINNING of the hereinafter described tract of land; THENCE over and across said City of Denton tract, the following courses and distances; N 90 °00'00" W, a distance of 381.13 feet to a 5/8 inch iron rod set with cap stamped "TNP' ; EXHIBIT 3 THENCE along the common line of said tracts, the following courses and distances; S 31 009'58" E, a distance of 86.95 feet to a 5/8 inch iron rod set with cap stamped "TNPII 11`7r : S 76 °5925" E, a distance of 97.15 feet a 1/2 inch iron rod found with cap stamped "H &N RPLS1849 "; N 65 °07'08" E, a distance of 73.17 feet; S 58 106126" E, a distance of 53.18 feet; S 28 °45'18" E, a distance of 123.22 feet; S 172T12" W, a distance of 199.96 feet to the POINT OF BEGINNING and containing 127,199 square feet or 2.920 acres of land. PROPERTY DESCRIPTION — TRACT 2 Being 24.293 acres of land situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas and being a portion of a called 245.00 acre tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997- 19639, Deed Records of Denton County, Texas (D.R.D.C.T.), and also containing all of Lot 1, Block 1, Lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas (P.R.D.C.T); said 24.293 acres of land being more particularly described by metes and bounds as follows: BEGINNING at a 1/2 inch iron rod with cap stamped "H &N RPLS1849 ", found in the north line of said City of Denton tract at the southeast corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013- 121184, D.R.D.C.T., and also being the southwest corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No, 2013 - 110116, D.R.D.C.T., from which a 1/2 inch iron rod with cap stamped "Metroplex 1849 ", found in the common line of said ATMOS tracts, bears N 01 139'00 E, 893.21 feet and from which a T -Bar found with cap stamped "Lonestar Survey" at the northwest corner of said Lot 1, Block 1, Lake Dallas Storage Addition, bears S 56 128136" E, 711.51 feet; THENCE along the north line of said City of Denton tract and along the south line of said ATMOS Energy Corporation tract, (Inst. No: 2013 - 110116, D.R.D.C.T.), the following courses and distances; S 87 °20'29" E, a distance of 271.49 feet to a 3" steel fence post found; S 88°32'46" E, a distance of 294.70 feet to a 3" steel fence post found; S 01 °16'24" W, a distance of 129.16 feet to a 3" steel fence post found; S 8891'50" E; a distance of 63622 feet to a 1/2 inch iron rod with cap stamped "Metroplex 1849 ", found at the most easterly northeast corner of said City of Denton tract, also being the southeast corner of said ATMOS Corporation tract and also being in the west line of a tract of land conveved to Kamv Real Proi3erty Trust. according to EXHIBIT 3 T -Post found with I" aluminum cap, bears N 889212" W, 0.72 feet; and continuing in all, a distance of 1043.60 feet to a 5/8 inch iron rod set with cap stamped "TNT "; THENCE over and across said City of Denton tract, the following courses and distances; N 89 116144" W, a distance of 493.48 feet to a 5/8 inch iron rod set with cap stamped `<TNP N 00 °33'48" E, a distance of 187.37 feet to a 5/8 inch iron rod set with cap stamped 41W). N 89 1108144" W, a distance of 148.76 feet to a 5/8 inch iron rod set with cap stamped «gyp», N 00 °05'30" E, a distance of 315.17 feet to a 5/8 inch iron rod set with cap stamped "TNP" in the south line of an existing NGC Gathering Company easement tract, as recorded in Instrument #2006- 61044, D.R.D.C.T.; N 88 °28'42" W, along the south line of said easement, a distance of 423.83 feet to a 1/2 inch iron rod found with cap stamped "Coleman RPLS 4001" at the southwest comer of said easement; N 01 °30'12" E, along the south line of said easement, a distance of 370.43 feet to a 5/8 inch iron rod set with cap stamped "TNP' ; N 54 023155" W, leaving said easement line, a distance of 260.10 feet to a 518 inch iron rod set with cap stamped "TNP "; N 88 °33'10" W, a distance of 376.06 feet to a 5/8 inch iron rod set with cap stamped «TNP,). N 00 043145" E, a distance of 173.48 feet to a 5/8 inch iron rod set with cap stamped "TNP" in the north line of said City of Denton tract, also being in the south line of aforementioned ATMOS Energy Corporation tract, (Inst. No. 2013 - 121184, D.R.D.C.T.); THENCE along the north line of said City of Denton tract and along the south line of said ATMOS Energy Corporation tract, the following courses and distances; S 88 022144" E, a distance of 202.72 feet to a 4" steel fence post found; S 87 118'21" E, a distance of 262.75 feet to the POINT OF BEGINNING and containing 1,058,191 square feet or 24.293 acres of land. EXHIBIT 3 13 -1 EXHIBIT B -1 " INGRESS - EGRESS EASEMENT " Being 23,764 square feat of land shoaled in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas and being a portion of a tract of laird conveyed to the City.of Denton, Texas, according to We deed recorded in Instrument No. 1997-19639, Deed accords of Denton County, Texas (DA.D.C.T.), said 23,764 square feet of land being more particularly described by metes and bounds as follows: COMMENCING at a 112: inc5 imp rod with cap stnmpcd �`'H&N RPLS 1849 ", found in the north line of said City of Denton acct at the southeast comer of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013 -121 l 84; D.R.D.C.T., and also being the, southwest corner of a tract of land conveyed 16 ATROS Eatrgy Corporation, according to the deed recorded in Instrument No. 7AI3- 110116, D R.D,C.T., from. which a 112 inch iron rod with cap stamped "Metroplcx 1849 ", found in the common line of said,ATMOS_tracts, bears N 01 °39'00 E, 893.21 feet and from which a T -Bar found with cap stamped "Constar Survey" at rife northwest comer of Lot 1, Block 1, lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas, bears S 56°28'36" E, 711.51 feet; THENCE S 87 °20129 E, along the north line of said City of Denton tract, and along the south line of said ATMOS Energy Corporation tract, (Inst. No. 2013 - 110116, DA D.C.T.), a distance of 113.85 feet; THENCE S 02 °41'39" W, over and across said City of Denton tract, a distance of 40.00 feet to the POINT OF BEGINNING of the hereinafter described tract of land; THENCE continuing over and across said City of Denton tract, the following courses and distances; S 02 041'39" W, a distance of 5.57 feet; S 57005'09" E, a distance of 283.30 feet; S 02 033'35" W, a distance of 488.11 feet; N 88°28'42" W, a distance of 30.00 feet; N 02 933'35" B, a distance of 471.46 feet, N 57 005'09" W, a distance of 32859 feet; S 87 12079" E, a distance of 69.09 feet to the POINT OF BEGMNI NG and containing 23,164 square feet or 0,546 of an acre of land. ThLon Sims. R.p.LS. Texas RegisWon No, 56 Date: October 13, 2015 1, Begs of Ones shown hereon rotor to Grid Northam he Taxes Coordinate System of 196'1 arin (Notlh Cenlral zono: NAD63(COR996) Epoch 2002,00) as derived locally from Western Data Systams Continuously Operating Reference Stations (COBS) via Real Time Kinematic (RTK) fa Methods. An average Combination otor of 1. D0150630 was Mod to scale 9dd coordinates .arid distances to surface. 2, Integral parts of this survey: a. Legal Description b. Sketch shed loft AEC 14231 Page 2 of IZ.. EXHIBIT 3 EXHIBIT B-2 .F ON - ix; J it 2 Aj P-1 2- m t, I W* 41 to 4 0 1,2 �a14 U 4D t3' 13 Uj 4 a!� q'V Vi .F ON - ix; J it 2 Aj P-1 2- m t, I W* 41 to 4 0 1,2 �a14 U 4D t3' 13 Uj 4 a!� 13-2 " � o C11 O LA Vf- Cl am x w c e� 'I-- - , O Fir I ci Page 3 of 12 I Cz. 41 c3 J ME ii I ti Q! f Q ta L4 W7 Lq t3 tv C) Sig -lE —FF 02" R 13-2 " � o C11 O LA Vf- Cl am x w c e� 'I-- - , O Fir I ci Page 3 of 12 I EXHIBIT 3 C -1 EXHIBIT C -1 " INGRESS- EGRESS EASEMENT " Being 28,422 square feet of land situated in the G. Walker Survey, Abstract No. 1330, City of Denton. Denton County, Texas and being a portion of a tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997 - 19639, Deed Records of Denton County, Texas (D.R.D.C.T.), said 28,422 square feet of land being more particularly described by metes and bounds as follows: BEGINNING at a 112 inch iron. nod with cap stamped "H&N RPLS 1849 found in the north line of said City of Denton tract at the southeast comer of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in instrument No. 2013 - 121184, D.R.D.C.T., and also being the southwest comer of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013- 110116, D.R.D.C.T„ from which a 1/2 inch iron rod with cap stamped "Metroplex 1849 ", found in the common line of said ATMOS trans, bears N 01 °39'00 E, 893.21 feet and from which a T -Bar found with cap stamped "Lonestar Survey" at the northwest comer of Lot 1, Block 1, Lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas, bears S 56°28'36" B. 71151 feet; THENCE S 87 020'29 A along the north line of said City of Denton tract, and along the south line of said ATMOS Energy Corporation tract, (Inst. No. 2013 - 110116, D.R.D.C.T.), a distance of 113.85 feet; THENCE over and across said City of Denton tract, the following courses and distances; S 02 °41'39" W. a distance of 40.00 feet; N 87M29" W, a distance of 113.13 feet; S 01 °39'00" W. a distance of 185.72 feet; N 54 °2355" W, a distance of 36.17 feet; N 01 °39'00" E, a distance of 166.07 feet; N 87 °1821" W, a distance of 233.10 feet; N 88 °22'44" W, a distance of 201.72 feet; N 00 °4345" E, a distance of 40.00 feet to a 1/2 inch iron rod set with cap stamped '"M" in the north lime of said City of Denton tract, also being in the south line of said ATMOS Energy Corporation Tract, (1nst. No. 2013- 121184, D.R.D.C.T., from which a 4" steel fence post found, bears N 88 °22'44" W, 92.44 feet; Shag 1or3 ABC 14231 Page 4 of 12 EXHIBIT 3 THENCE S 88 °22'44" E, along the north line of said City of Denton tract, and along said south lint of said ATMOS Energy Corporation tract, a distance of 202.72 feet to a 4' steel fence post found; THENCE S 87 °18'21" E, continuing along said line, a distance of 262.75 feet to the POINT OF BEGINNING and containing 28,422 square feet or 0.652 of an acre of land. teron W. Sims, :7f Texas Registration No. Date: October 13, 2015 1. Bearings of lines shown hereon refer to Grid North of the Texas Coordinate System of 1993 (North Central Zone; NAD83(CORS9N) Epoch 2002.00) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORE) via Real Time Kinematto (RTK) methods. An average Combination Factor of 1.000150630 was used to scale grid coordinates and distances to surface. 2. Integral pads of this survey: a. Legal Description b. Sketch Sh«t W3 AEC 14231 Page 6 of 12 EXHIBIT 3 EXHIBIT C -2 O ND O Ci Ld i�-Zci +--- 5 O ND O Ci Ld i�-Zci O ND 69 zi "'! I �-----vx ZE R�,jjr - 7 tic A '2t g � f"A jnn -61 cq NN ro % C-2 O ELI Z-o g to u C *min X-, 46 A, 6 �z 0 or Page 6 of 12 EXHIBIT 3 D -1 EXHIBIT D -1 " 25' UTILITY EASEMENT " Being 6,013 square acct of land situated in tare G: Walker Survey, Absiraet No, 1330, City of Denton; Denton County, Texas and being a portion of a tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997 - 19639, Deed Records of Denton County; Texas (D.R.D.C,T.), said 6,0134- square feet of land being more particularly described by metes and bounds as follows: COMMENCING at a Ill inch iron tod with eap Mraped "H&N RPLS 1 849 ", found in the north line of said City of Denton tract st the southeast corner of a tract of land conveyed to ATMOS "Energy Corporation, according to the decd recorded in Instrument No. 2033- 121184, D.R.D.C,T.; "and also being the southwest corner of a tract of land conveyed to ATMOS )Energy Corporation, according to the deed recorded in Instrument No. 2013 - 110116, I7 R D,C T., from which a 1/2 inch iron Tod with cap stamped "Metroplex 184911, found in the common line of said ATM05 tracts, bears N 01'39'00 E, 89121 fret and from which a T -Bar found with cap stamped "Constar Survey" at the northwest comer of Lot 1, Block L, lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas, bears S 56°28'36" 11, 711.51 feet; THENCE S 87°20'24 X Along the ntuilt li`ne.of said City of Denton tract, and along the south Tune of Mild ATMOS Energy Corporation tract, (Inst. No. 2013-1 10116, a distance of 041 feet to the southwest comer of an existing 25' Sanitary Sewer & Rousts Line Easement, according to the Instnnnent filed in No. 2007- 21852, D.R.D.C.T. and also being the southwest comer of an existing 25' Utility Easement, according to the Instrument filed in No. 2004 - 107177, D.R.D.C.T, and the POINT OF BEGINNING of the ho inafter described tract of land; THENCE S 87°20'29" E, continuing along the noiih lice of said City of Denton tract and along the south line of said ATMt7S Corporation tract and "along the south line of said easements, a distance of 35.26 feet io Ole southeast comer of said easements; THENCE over and across said City of Denton tract, the following courses and distances; S 47 °30'3T' W, a distance of 247.32 feet; N 541355" W, a distance of 11.75 feet to a 1/2 inch iron rod set with cap stamped .TDNp.,. N 88133'10" W, a distance of 19.45 feet; N 4703937" E, a distance of 236.88 feet to the POINT OF BEGINNING and containing 6,013 square feet or 0.138 of an acre of land. T ereron W. Sims, R.P.t..$.--2 Texas Registration No, 98$7 Date: October 13, 2015 i. Bearings of tines shown hereon roiar 10 Grid Narththe Texas Coordinate System of 1983, (North Central Zone; NAD83(CORS96) Epoch 2002.00) as derived locally from Westem Pata Systems Continuously operating Reference Statlons (COBS) via Real Time ftematlo (RTit7 methods. An average Cembination Faetor of 1.000150630 was used to scale grid coordinato And distances to surface. 2, integral parts of this survey: a. Liegal Description b. Sketch Shat loft AEC 14231 Page T of 12 E., O o Ewa X ov -vaq O O Ld EXHIBIT 3 EXHIBIT D-2 Qi Op vi n s 'Ito 4 -N - P CL c N q ZZ p-, wl: 44ci V) tl; u —j p i I RN z -e 81 G — — — — — — --- — 21 Ln r �A oN 6 C -h -N fix CL od-T ass a� SL At 4, 6 CIL VI 0 0 CJ Page 8 of 12 N O o Ewa X ov -vaq O O Ld EXHIBIT 3 EXHIBIT D-2 Qi Op vi n s 'Ito 4 -N - P CL c N q ZZ p-, wl: 44ci V) tl; u —j p i I RN z -e 81 G — — — — — — --- — 21 Ln r �A oN 6 C -h -N fix CL od-T ass a� SL At 4, 6 CIL VI 0 0 CJ Page 8 of 12 EXHIBIT 3 lE -1 EXHIBIT E -1 " 25' UTWITY EASEMENT " Being 20,628 square feet of land situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas and being a portion of a tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997-19639, Deed Records of Denton County, Texas (DR.D.C,T.l said 20,628 square feet of land being more particularly described by metes and bounds as follows: COMMENCING at a 112 inch iron rod with cap stamped "H&N "I.S1849 ", found in the notch line of said City of Denton tract at the southeast comer of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013 - 121184, D.R.D.C.T., and also being the southwest corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No. 2013- 110116, D.R.D.0 T., from which a 112 inch iron rod with cap stamped "Metroplex 1849 ", found in the common line of said ATMOS tracts, bears N 01°39'00 E, 893.21 feet and from which a T -Bar found with cap stamped "Lonestar Survey" at the northwest corner of Lot 1, Block 1, Lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas, bears S 56°28'36'E.711S1 feet; THENCE S 87 °20'291x, along the north line of said City of Denton tract, and along the south line of said ATMOS Energy Corporation tract, (Inst. No. 2013 - 110116, D.R.D.C.T), passing along the south end of an existing 25' Sanitary Sewer & Reuse Line Easement, according to the Instrument filed in No. 2007- 21852, DR.D.C.T. and the south end of an existing 25' utility Easement, according to the Instrument filed in No. 2004- 107177, D.R.D.C.T., a distance of 100.67 feet to the southeast corner of said easements; TIEENCE S 47 030'37" W, over and across said City of Denton tract, a distance of 7.99 feet to the POINT OF BEGINNING of the hereinafter described had of land; THENCE continuing over and across said City of Denton tract, the following courses and distances; S 57°0509" A a distance of 333,96 feet; S 02 °3335" W, a distance of 501.99 feet; N 88128'42" W, a distance of 25.00 feeq N 02°3335" E, a distance of 488.11 feet; N 57°05'09" W, a distance of 326.14 feet; N 47 °30'37" E, a distance of 25.83 feet to the POINT OF BEGINNING and containing 20,628 square feet or 0.474 of an acre of land. Theron Vs+: Sims, R.P.Lrt S; _ Texas Registration No. St1N7�� Date: October 13, 2015 1. Bearings of tines shown hereon refer to Grid North of the Texas Coordinate System of 1983 (North Central Zone; NA083(CORM) Epoch 2002.00) as derived locally from Western Data Systems Continuously Operating Reference Stations (COBS) via Real Time Kinematic (RTK) methods. An average Combination Factor of 1.000150630 was used to scale grid coordinates and distances to surface. 2. Integral parts of this survey. a. Legal Description b. Sketch sheet tof z ABC 14231 Page 9 of 12 O O u ,UL '`�6� o ta 1 w °i Z G Z 4v tug - It d. O -W M, u ,UL '`�6� o ta 1 w °i A 1-M 4v -W M, EXHIBIT 3 EXHIBIT E-2 g t 1 ;., I ill kl E4 u r A 1 w °i A 1-M It d. sam EXHIBIT 3 EXHIBIT E-2 g t 1 ;., I ill kl E4 O LO -j E-2 tL O 3c, UO � Yt 1 do tV P5 U CL 13, U62, 01,3 !Z low Page 14 of 12 r A 1 w °i It d. O LO -j E-2 tL O 3c, UO � Yt 1 do tV P5 U CL 13, U62, 01,3 !Z low Page 14 of 12 EXHIBIT 3 F -1 EXHIBIT F -1 " W ELECTRIC EASEMENT" Being 16,699 square feet of land situated in the G. Walker Survey, Abstract No. 1330, City of Denton, Denton County, Texas and being a portion of a tract of land conveyed to the City of Denton, Texas, according to the deed recorded in Instrument No. 1997-19639, Deed Records of Denton County, Texas (D.R.D.C.T.), and also being a portion of I-ot 1, Block 1, Lake Dallas Storage Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Instrument No. 2012 -111, Plat Records of Denton County, Texas (P.R.D.C.T.) said 16,699 square feet of land being more particularly described by motes and bounds as follows: BEGINNING at a 112 inch iron rod found with cap stamped "Metroplex 1849 ", at the most easterly northeast corner of said City of Denton tract, also being the southeast corner of a tract of land conveyed to ATMOS Energy Corporation, according to the deed recorded in Instrument No, 2013 - 110116, DILD.C.T., and also being in the west line of a tract of land conveyed to Kamy Real Property Trust, according to the deed recorded in Instrument No. 2011- 44836, D.R.D.C.T., from which a 1/2 inch iron rod with cap stamped "Metroplex 1849 ", found at the northeast corner of said ATMOS Corporation tract, also being the northwest corner of said Kamy Real Property Trust tract and also being in the south Right -of -Way line of E. McKinney Street (F.M. 426), bears N 01°22'23" E, 958.69 feet; THENCE S 01°2223" W, along the east line of said City of Denton tract, and along the west line of said Kamy Real Property Trust tract, at a distance of 242.74 feet passing the northeast corner of said lot 1, Block 1, Lake Dallas Storage Addition, from which a T -Bar found with cap stamped "Constar Survey" at the northwest comer of said Lot 1, bears N 88°32'43" W. 600.15 fort; at a distance of 499.61 feet passing the southeast comer of said Lot 1, from which a T -Post found with 1" aluminum cap, bears N 88°32'12" W, 0.72 feet; and continuing in all, a distance of 1043.60 feet to a 5/8 inch iron rod set with cap stamped"fW'; THENCE N 89 °16'44" W. over and across said City of Denton tract, a distance of 16.00 feet; THENCE N 01 022'23" 1, continuing over and across said City of Denton tract, passing over and across said Lot 1, in all a distance of 1043.81 feet to the north line of said City of Denton tract, also being the south line of said ATMOS Energy Corporation tract; THENCE S 88°31'50" E, along the north line of said City of Denton tract, and along the south line of said ATMOS Energy Corporation tract, a distance of 16.00 feet to the POINT OF BEGINNING and containing 16,699 square feet or 0.383 of an acre of land. 7&kg;�7� Date: October 13, 2015 1. Bearings of lines shown hereon refer to Grid North of the Texas Coordinate System of 1983 (North Central Zone; NAD83(CORS96) Epoch 2002.00) as derived locally from Western Data Systems Continuously Operating Reference Stations (COBS) via Real Time Kinematic (RTK) methods. An average Combination Factor of 1.000160630 was used to scale grid coordinates and distances to surface. 2. Integral parts of this survey: a. Legal Description b. Sketch Shat tof2 AEC 14231 Page 11 of 12 EXHIBIT 3 f7Vl4lRlT F--') C. 1. CITY a' MUM, WXAS /NST, 11997-19639 D.RD.C.T, F-2 NOTES: - 1) h.eoa few b f;M N.11, of 11'- 'TC4C Coal" Z�; tLkj:W(QQR890) Epo�il 202LO) - 40ni-d R�%Y I= W) 1- Uatl SY'le oN.1kv W.F.A= stf,-- (Cor-$)Vta 7 IIR' IFIF Cl 'IR-'RF WITH C11P SrAMPEO CAP S M P_D a.". -METROPLU 1849' C'_ , ' Z A&IdA .UJ my .hI aftd .01 be 3) 1000,w P"d. of M &Mcy-. De-fpCw ' iz, t"Legal .- skcl'' 0 iwMpS ENERGY CORPORATION-- COMPANY C5A4'r. INST. 12006-61044 I'N YE 0- INST 12013-110116 O.R.D.C.T. D. R-A C. I, LOT 1, BLK. I o, WE DALUS STORAGE ADD117I INST 12012-111 EATOJ DEATOAT CO U207 (APPR OX) 16.00'A CITY OF DEA TON (APPROX) - - — — — — 112- inr min cAp srmpEv Pipcow rs>a'1.1 WETROPLEX. 1040' iMSINST, 1997 -19639 (rorm C. 1. CITY a' MUM, WXAS /NST, 11997-19639 D.RD.C.T, 161 ELECTRIC EASEMENT Shunted in Oic G. Walker Survay. Abstract W 1330, City of Deatan, Denton County, Texas and and also Wing a Portion of Lot 1, Block 1, L&V Dallas Sturage Addhion, an addition to the City or Denton, Dcnlon County, Toxas, according IQ the Plat mcordLd in Instruniont No, 2012 -11 1, Plat Rtcc-r&' of MoWn County, Texas. ronEfthw COMPANY mi'T. T 1200$-61044, O.R.D.C.T. T-BAR 010. MTH N88'32,+3W, 61X1, CAP STAMPED (699.69' Plot) ZONESTAR SURVV' L"4 ' iz, NCO GATHERING 0 COMPANY C5A4'r. INST. 12006-61044 I'N YE 0- v O.R.D.C.T. b LOT 1, BLK. I 1 0 WE DALUS STORAGE ADD117I INST 12012-111 p.RD.CT cfly or DEA-10M. TEXAS iMSINST, 1997 -19639 D,c.r 161 ELECTRIC EASEMENT Shunted in Oic G. Walker Survay. Abstract W 1330, City of Deatan, Denton County, Texas and and also Wing a Portion of Lot 1, Block 1, L&V Dallas Sturage Addhion, an addition to the City or Denton, Dcnlon County, Toxas, according IQ the Plat mcordLd in Instruniont No, 2012 -11 1, Plat Rtcc-r&' of MoWn County, Texas. A r.-Posr I n. tit V! MTH I - ALUMINUM W FNO,, DFARS 0,72 , P SCALE 1 "100' 0! Mr,or DENTON, TEXAS INST, 11997-196JY D.R.D.C.T. 17 THE -RON W. SIMS, R.P.LS. ....... TEXAS REGISTRATION NO, 5867 N119.1 644"W "s4 5887 N October 13, 2016 Ua DATE-. 4'46 t league nail & perkins i� AQ ".j.4 1100 Macon Streol Fort Worih, Texas 76102 W np $17.336.5773 ph 817.3 32.77$6 fx SHEET' 2 OF 2, JOB No. AEC 142J T Anplh No. 100116-00 -lop, Ro 115A 4.Nfd'�' EI. A-5114- -423Lf-V Page 12 of 12 .2 L"4 NCO GATHERING COMPANY C5A4'r. INST. 12006-61044 N v O.R.D.C.T. 1 0 A r.-Posr I n. tit V! MTH I - ALUMINUM W FNO,, DFARS 0,72 , P SCALE 1 "100' 0! Mr,or DENTON, TEXAS INST, 11997-196JY D.R.D.C.T. 17 THE -RON W. SIMS, R.P.LS. ....... TEXAS REGISTRATION NO, 5867 N119.1 644"W "s4 5887 N October 13, 2016 Ua DATE-. 4'46 t league nail & perkins i� AQ ".j.4 1100 Macon Streol Fort Worih, Texas 76102 W np $17.336.5773 ph 817.3 32.77$6 fx SHEET' 2 OF 2, JOB No. AEC 142J T Anplh No. 100116-00 -lop, Ro 115A 4.Nfd'�' EI. A-5114- -423Lf-V Page 12 of 12 .2 L"4 :7 N v 1 0 16' ELM ESM r 16,1599 S.F. A r.-Posr I n. tit V! MTH I - ALUMINUM W FNO,, DFARS 0,72 , P SCALE 1 "100' 0! Mr,or DENTON, TEXAS INST, 11997-196JY D.R.D.C.T. 17 THE -RON W. SIMS, R.P.LS. ....... TEXAS REGISTRATION NO, 5867 N119.1 644"W "s4 5887 N October 13, 2016 Ua DATE-. 4'46 t league nail & perkins i� AQ ".j.4 1100 Macon Streol Fort Worih, Texas 76102 W np $17.336.5773 ph 817.3 32.77$6 fx SHEET' 2 OF 2, JOB No. AEC 142J T Anplh No. 100116-00 -lop, Ro 115A 4.Nfd'�' EI. A-5114- -423Lf-V Page 12 of 12 EXHIBIT 3 Deed without Warranty EXHIBIT 3 Date: December 18 2015 Grantor: City of Denton, a Texas home -rule municipal corporation Grantor's Mailing Address: 215 E. McKinney St. Denton, Texas 76201 Grantee: Atmos Energy Corporation Grantee's Mailing Address: 5420 Lyndon B. Johnson Freeway Dallas, TX 75240 Consideration: TEN DOLLARS ($10) cash and other good and valuable consideration, the receipt of which is hereby acknowledged, and for which no lien, expressed or implied, is retained in this deed. Property (including any improvements): See Exhibit "A" attached and made a part of this Deed for all purposes. Reservations from Conveyance: Mineral Estate: For Grantor and Grantor's, successors, and assigns forever, a reservation of all oil, gas, and other minerals in and under and that may be produced from the Property. If the mineral estate is subject to existing production or an existing lease, this reservation includes the production, the lease, and all benefits from it. Grantor waives the right of ingress and egress to and from the surface of the Property relating to the portion of the mineral estate owned by Grantor. Nothing herein, however, restricts or prohibits the pooling or unitization of the portion of the mineral estate owned by Grantor with land other than the Property; or the exploration or production of the oil, gas, and other minerals by means of wells that are drilled or mines that open on land other than the Property but enter or bottom under the Property, provided that these operations in no manner interfere with the surface or subsurface support of any improvements constructed or to be constructed on the Property. 2. Access Easement: For Grantor and Grantor's successors and assigns forever, a reservation of an easement to provide free and uninterrupted pedestrian and vehicular ingress, egress and regress over, on, and across the land described in this paragraph and located on the Property. This easement is described in the attached Exhibit "13-1" and depicted in the Vage 1 of 6 — Deed Without Warranty EXHIBIT 3 attached Exhibit "13-2" ( "Access Easement No. I"). This easement is appurtenant to and runs with the Property. This easement shall be unobstructed. Improvement and maintenance of Access Easement No. I will be at the sole expense of the holder of the easement. The holder has the right to eliminate any encroachments into Access Easement No. 1. The holder of the easement will maintain Access Easement No. 1 in a neat and clean condition. Grantee and Grantee's successors and assigns have the right to use the surface of Access Easement No. I for all purposes that do not unreasonably interfere with or interrupt the use of the easement. Access Easement: For Grantor and Grantor's successors and assigns forever, a reservation of an easement to provide free and uninterrupted pedestrian and vehicular ingress, egress and regress over, on, and across the land described in this paragraph and located on the Property. This easement is described in the attached Exhibit "G1" and depicted in the attached Exhibit "C -2" ( "Access Easement No. 2 "). This easement is appurtenant to and runs with the Property. This easement shall be unobstructed. Improvement and maintenance of Access Easement No. 2 will be at the sole expense of the holder of the easement. The holder has the right to eliminate any encroachments into Access Easement No. 2. The holder of the easement will maintain Access Easement No. 2 in a neat and clean condition. Grantee and Grantee's successors and assigns have the right to use the surface of Access Easement No. 2 for all purposes that do not unreasonably interfere with or interrupt the use of the easement. 4. Sanitary Sewer Utility Easement: For Grantor and Grantor's successors, and assigns forever, a reservation of an easement to construct, reconstruct, and maintain one or more sanitary sewer mains, and for making connections therewith, along with all necessary, convenient or desirable appurtenances, attachments and supporting structures, including without limitation, foundations and structural components (collectively referred to herein as the "Facilities "), in, upon and across the land described in this paragraph and located on the Property. This easement is described in the attached Exhibit "D -I" and depicted in the attached Exhibit "D -2" ( "Sanitary Sewer Easement No. 1 "). This easement is appurtenant to and runs with the Property. This easement shall be unobstructed. Improvement and maintenance of Sanitary Sewer Easement No. 1 will be at the sole expense of the holder of the easement. The holder has the right to eliminate any encroachments into Sanitary Sewer Easement No. 1. The holder of the easement will restore and maintain Sanitary Sewer Easement No. I in a neat and clean condition. Grantee and Grantee's successors and assigns have the right to use the surface of Sanitary Sewer Easement No, I for all purposes that do not unreasonably interfere with or interrupt the use of the easement. Grantor shall have the right of ingress, egress and regress in, on, over, under and across the Sanitary Sewer Easement No. 1 for the purposes of, and right to, construct, maintain, operate, improve, reconstruct, increase or reduce the size and capacity, repair, relocate, inspect, patrol, maintain, remove or replace such Facilities within the Sanitary Sewer Easement No. 1 as Grantor may from time to time End necessary, convenient or desirable, along with all rights necessary or convenient for full use and enjoyment of the above grant, including access over, across and upon the Sanitary Sewer Easement No. 1. Grantor shall have the right to trim or remove trees or shrubbery within said Sanitary Sewer Easement No. 1, to the extent, in the sole judgment of Grantor, necessary or desirable to prevent possible interference with the efficiency, safety and/or convenient operation of the Facilities or to remove possible efficiency, safety or operational hazards thereto. Grantee shall not make changes in grade, elevation or contour of the Sanitary Sewer Easement No. 1 or impound water within, over and/or across the Sanitary Sewer Easement No. 1 without prior written Yage 2 of 6 — Deed Without Warranty EXHIBIT 3 consent of Grantor. Grantor, at Grantor's sole cost and expense, shall have the right to install gates in existing fences within such Sanitary Sewer Easement No. 1. 5. Sanitary Sewer Utility Easement: For Grantor and Grantor's successors, and assigns forever, a reservation of an easement to construct, reconstruct, and maintain one or more sanitary sewer mains, and for making connections therewith, along with all necessary, convenient or desirable appurtenances, attachments and supporting structures, including without limitation, foundations and structural components (collectively referred to herein as the "Facilities "), in, upon and across the land described in this paragraph and located on the Property. This easement is described in the attached Exhibit "E -I" and depicted in the attached Exhibit "E -2" ( "Sanitary Sewer Easement No. 2 "). This easement is appurtenant to and runs with the Property. This easement shall be unobstructed. Improvement and maintenance of Sanitary Sewer Easement No. 2 will be at the sole expense of the holder of the easement. The holder has the right to eliminate any encroachments into Sanitary Sewer Easement No. 2. The holder of the easement will restore and maintain Sanitary Sewer Easement No. 2 in a neat and clean condition. Grantee and Grantee's successors and assigns have the right to use the surface of Sanitary Sewer Easement No. 2 for all purposes that do not unreasonably interfere with or interrupt the use of the easement. Grantor shall have the right of ingress, egress and regress in, on, over, under and across the Sanitary Sewer Easement No. 2 for the purposes of, and right to, construct, maintain, operate, improve, reconstruct, increase or reduce the size and capacity, repair, relocate, inspect, patrol, maintain, remove or replace such Facilities within the Sanitary Sewer Easement No. 2 as Grantor may from time to time find necessary, convenient or desirable, along with all rights necessary or convenient for full use and enjoyment of the above grant, including access over, across and upon the Sanitary Sewer Easement No. 2. Grantor shall have the right to trim or remove trees or shrubbery within said Sanitary Sewer Easement No. 2, to the extent, in the sole judgment of Grantor, necessary or desirable to prevent possible interference with the efficiency, safety and /or convenient operation of the Facilities or to remove possible efficiency, safety or operational hazards thereto. Grantee shall not make changes in grade, elevation or contour of the Sanitary Sewer Easement No. 2 or impound water within, over and /or across the Sanitary Sewer Easement No. 2 without prior written consent of Grantor. Grantor, at Grantor's sole cost and expense, shall have the right to install gates in existing fences within such Sanitary Sewer Easement No. 2. 6. Electric Distribution and Communication Easement: For Grantor and Grantor's successors, and assigns forever, a reservation of an easement to erect, operate, maintain and service thereon one or more underground and /or above ground electric distribution power and /or communication lines, each consisting of a variable number of wires and cables, along with all necessary, convenient or desirable appurtenances, attachments and supporting structures, including without limitation, foundations, guy wires and guy anchorages, and structural components (collectively referred to herein as the "Facilities ") in, on, over, under and across the land described in this paragraph and located on the Property. This easement is described in the attached Exhibit "F -1" and depicted in the attached Exhibit "F -2" ( "Electric Distribution and Communication Easement "). This easement is appurtenant to and runs with the Property. Improvement and maintenance of Electric Distribution and Communication Easement will be at the sole expense of the holder of the easement. The holder has the right to eliminate any encroachments into Electric Distribution and Communication Easement. The holder of the easement will maintain Electric Distribution and Communication Easement in a neat and clean condition. Grantee and Grantee's successors and assigns have the right to use the surface of Electric Distribution and Communication Easement for all purposes that do not unreasonably interfere with or Page 3 of 6— Deed Without Warranty EXHIBIT 3 interrupt the use of the easement. Grantor shall have the right of ingress, egress and regress in, on, over, under and across the Electric Distribution and Communication Easement for the purposes of, and right to, construct, maintain, operate, improve, reconstruct, or reduce the size and capacity, repair, relocate, inspect, patrol, maintain, remove or replace such Facilities within the Electric Distribution and Communication Easement as Grantor may from time to time find necessary, convenient or desirable, along with all rights necessary or convenient for full use and enjoyment of the above grant, including access over, across and upon the Electric Distribution and Communication Easement. Grantor shall have the right to trim or remove trees or shrubbery within said Electric Distribution and Communication Easement, to the extent, in the sole judgment of Grantor, necessary or desirable to prevent possible interference with the efficiency, safety and /or convenient operation of the Facilities or to remove possible efficiency, safety or operational hazards thereto. Grantee shall not make significant changes, which violate then current governmental, regulatory or administrative laws, in grade, elevation or contour of the Electric Distribution and Communication Easement or impound water within, over and /or across the Electric Distribution and Communication Easement without prior written consent of Grantor. Grantor, at Grantor's sole cost and expense, shall have the right to install gates in existing or future fences built by Grantee within such Electric Distribution and Communication Easement. Exceptions to Conveyance: Liens described as part of the Consideration and any other liens described in this deed as being either assumed or subject to which title is taken; validly existing easements, rights -of -way, and prescriptive rights, whether of record or not; all presently recorded and validly existing restrictions, reservations, covenants, conditions, oil and gas leases, mineral interests, and water interests outstanding in persons other than Grantor, and other instruments, other than conveyances of the surface fee estate, that affect the Property; validly existing rights of adjoining owners in any walls and fences situated on a common boundary; any discrepancies, conflicts, or shortages in area or boundary lines; any encroachments or overlapping of improvements; and taxes for 2015, which Grantee assumes and agrees to pay, and subsequent assessments for that and prior years due to change in land usage, ownership, or both, the payment of which Grantee assumes. "As Is" Conveyance: GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTY OR ANY INFORMATION DELIVERED BY GRANTOR TO BUYER IN CONNECTION WITH THE PROPERTY. BUYER IS PURCHASING THE PROPERTY AS IS WITH ALL FAULTS AND DEFECT'S, KNOWN OR UNKNOWN, PATENT OR LATENT, WITHOUT ANY REPRESENTATION OR WARRANTY, ORAL OR WRITTEN, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, MERCHANTABILITY, SUITABILITY OR QUALITY, AND IN SOLE RELIANCE ON BUYER'S OWN INDEPENDENT INSPECTION, INQUIRY OR INVESTIGATION. GRANTOR IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE, ZONING, PLATTING, SUBDIVISION, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS, VALUATION, GOVERNMENT APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTERS OR THINGS RELATING TO OR AFFECTING THE PROPERTY. Page 4 of 6 — Deed Without Warranty EXHIBIT 3 GRANTOR IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO ANY IMPROVEMENTS OF THE PROPERTY CONVEYED; AND THE MANNER OR REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY IMPROVEMENTS. THERE, ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY GRANTOR, ANY AGENT OF GRANTOR OR ANY THIRD PARTY. GRANTOR IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY OTHER PERSON. GRANTEE HAS NOT RELIED ON ANY INFORMATION OTHER THAN GRANTEE'S INSPECTION. GRANTEE RELEASES GRANTOR FROM LIABILITY FOR ENVIRONMENTAI. PROBLEMS AFFECTING THE PROPERTY, INCLUDING LIABILITY (1) UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA), THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT, AND THE TEXAS WATER CODE; OR (2) ARISING AS TLIE RESULT OF THEORIES OF PRODUCT LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS OR CHANGES TO EXISTING LAWS ENACTED AFTER THE EFFECTIVE DATE OF THE PURCHASE CONTRACT THAT WOULD OTHERWISE, IMPOSE ON GRANTORS IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY. THIS RELEASE APPLIES EVEN WHEN THE ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY RESULT FROM GRANTOR'S OWN NEGLIGENCE OR THE NEGLIGENCE OF GRANTOR'S REPRESENTATIVE. Strips and Gores: Grantor, for the same Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance, grants, sells, and conveys to Grantee, without express or implied warranty, the strips or gores, if any, between the Property and abutting properties and land lying in or under any public thoroughfare, opened or proposed, abutting or adjacent to the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's successors and assigns forever. All warranties that might arise by common law as well as the warranties in section 5.023 of the Texas Property Code (or its successor) are excluded as to the property conveyed by this paragraph. Grantor, for the Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance, grants, sells, and conveys to Grantee the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's successors and assigns forever, without express or implied warranty. All warranties that might arise by common law as well as the warranties in section 5.023 of the Texas Property Code (or its successor) are excluded. This conveyance is intended to include any property interests obtained by after - acquired title. When the context requires, singular nouns and pronouns include the plural. Page 5 of 6 — Deed Without Warranty EXHIBIT 3 GRANTOR: CITY OF DENTON, A Texas home -rule municipal corporation George C. Campbell, City Manager ATTEST: Jennifer Walters, City Secretary APPROVED AS TO FORM: Anita Burgess, City Attorney Acknowledgment State of Texas Denton County This instrument was acknowledged before me on the day of ___ ___ , 2015, by George C. Campbell, City Manager of the City of Denton, Texas, a Texas home -rule municipal corporation, on behalf of said home -rule municipal corporation. Notary Public, State of Texas After recording, return to: Page 6 of 6 — Deed Without Warranty City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -104, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility pad- mounted switchgears to be stocked in the City of Denton Distribution Center; providing for the expenditure of funds therefor; and providing an effective date (RFP 5985 - awarded to Anixter Power Solutions in the three (3) year not -to- exceed amount of $6,000,000). RFP INFORMATION This RFP is for the supply of manual and automated, dead -front, air insulated, pad- mounted (PME) switchgears for Denton Municipal Electric's distribution system. PME switchgears are strategic infrastructure which provide the ability to switch electric load and limit customer power outage time by isolating underground faults and allowing for faster restoration of power during distribution system disturbances or events. Construction of a PME switchgear consists of a single, self - supporting, grounded enclosure which houses interrupter switches and power fuse holders that safely insulate the high voltage electric circuits from the reach of the general public. PME switchgears are used in the service and extension of the City of Denton's underground distribution system to existing and planned customers. This includes many of Denton's largest industrial customers and residential subdivisions. These items are carried in the Distribution Center working capital inventory and therefore taken only to City Council for consideration. Requests for Proposals were sent to 293 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Two (2) proposals meeting specifications were received. The proposals were evaluated based upon published criteria including price, delivery timeframe, compliance with specifications, and indicators of probable performance. Anixter Power Solutions was ranked the highest and determined to be the best value for the City of Denton (Exhibit 1). RECOMMENDATION Award to Anixter Power Solutions in the three (3) year not -to- exceed amount of $6,000,000. This amount includes a contingency for upcoming substation construction projects. City of Denton Page 1 of 2 Printed on 1/28/2016 File #: ID 16 -104, Version: 1 PRINCIPAL PLACE OF BUSINESS Anixter Power Solutions Corinth, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The items in this bid will be funded out of the Distribution Center working capital account and charged back to the using department. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner F,XHIRITS Exhibit l: Evaluation/Ranking sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Jerry Fielder at 349 -7173. City of Denton Page 2 of 2 Printed on 1/28/2016 LU F- LU F- z D 0 O F- D u FR F- LU LA. 0 -j CL CL D (A C 0 "r- m 5 7 -0 m F- Ln 00 (3) Ln CL LA. 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'6 '6 '6 O m Q a u C ,C u C �n O m m m O Q1 CL is O -° O O m m D `^ m 0 d d N O w .� D' n ar E O^ a-' E t v° a) E O^ O u f v u w o 0 o �u �u �u v m o a, °u ,ra a E a a m ° V)i vii vii r°— Q 0 w w w w w D a Z Z z N N 00 ci N O O O W N ri O O M N N N LA 01 U C O cV G l0 O I O I O I O I O I 0 milill a o• N U C O 4k 4C� oo Cr) - m i m _ >6 O U V v CU U D_ N m i� E •3 0 a! U d C a! a, E - v O ° — o o v a a O O O O O c-I N c-I l0 O r-1 EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF ELECTRIC UTILITY PAD - MOUNTED SWITCHGEARS TO BE STOCKED IN THE CITY OF DENTON DISTRIBUTION CENTER; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5985— AWARDED TO ANIXTER POWER SOLUTIONS IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $6,000,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility pad - mounted switchgears 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 5985 Anixter Power Solutions $6,000,000 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 EXHIBIT 2 authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5985 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 , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ANIXTER POWER SOLUTIONS (CONTRACT 5985) THIS CONTRACT is made and entered into this date , by and between Anixter Power Solutions a corporation, whose address is 2800 Quail Run Dr., Corinth, TX 76208, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5985 Su ply of Padmounted Switch_gear, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) City of Denton's RFP 5985 (Exhibit "B" on file at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Supplier's Proposal. (Exhibit "D "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER BY: FuSigned by: 5: Puce, AUTA&RIZIPaSIGNATURE Date: 1/13/2016 Scott Price Name: Title: Inside Sales 940 - 270 -7243 PHONE NUMBER scott.price2 @hdsupply.com FAX NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 5ocuSigned by: 6' LV , � An p C821996C2A2B439... Contract 5985 GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D, are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing (2cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one -year periods. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De- escalation Prices must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI) for other Switchgear and switchboard apparatus manufacturing (PCU335313335313). The price will be increased or decreased based upon the annual percentage change in the PPI. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and /or cancellation. The request can be sent by e -mail to: purchasing(2cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes Total Contract Amount The contract total shall not exceed $6,000,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product or services shall be delivered to the City per the days /weeks noted in Exhibit D after receipt of the order. Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 Fxhihit C City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the 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. Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 - 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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. 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 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 Contract 5985 DocuSign Envelope ID: B11E784C- 3A74- 44DA- A409- 15881ADC3E91 EXHIBIT 3 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 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 Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 www.anixterpowersoIutions.com HD Supply is glad to submit a bid in response to RFP#5985 — Supply of Electric Utility Pad- Mounted Switchgears for the City of Denton. Our experience in the utility distribution market dates all the way back to our company roots with Temple, Inc, which was operated as a full-line distributor in the State of Texas since 1953. We stock and supply distribution and transmission material, and have over 60 years of experience handling blankets and alliance agreements. In addition to our vast experience, we feel that we would be an exceptional choice to serve as the City of Denton's provider of switchgears given our close proximity to the central warehouse. The contract will be handled out of our Corinth, TX facility, placing us just ten miles from the City of Denton warehouse location. We have employees on call at all times to respond in the event of emergencies, and have a commitment to ensuring that your needs are exceeded. We look forward to conducting business with the City of Denton for years to come. LTA N Contract 5985 DocuSign Envelope ID: 1311E784C- 3A74- 44DA- A409- 15881ADC3E91 ENUMUT 3 RFP 5985 - Pricing Sheet for SUPPLY OF ELECTRIC UTILITY PADMOUNTED SWITCHGEAR Respondent's Business Name: dent's Business Name: Anixter Power Solutions Item # COD # EST. ANNUAL UOM Product Description S & C Catalog Number Unit Price Estimated Delivery ARO QTY (Business Days) Manual PME -9 configuration, Padmounted 1 28579309 7 EA Switchgear, 14.4 kV nominal, 3 -Phase unit. 65152R1 -E1F2K -5393 $ 15,745.00 50 Manual PME -10 configuration, 2 28579310 2 EA Padmounted Switchgear, 14.4kV nominal, 65242R1 -F2K 3 -Phase unit. $ 16,080.00 50 Manual PME -11 configuration, 3 28579311 15 EA Padmounted Switchgear, 14.4 kV nominal, 65162R1 -E1F2K -5393 3 -Phase unit. $ 16,125.00 50 Manual PME -12 configuration, 3A 2 EA Padmounted Switchgear, 14.4 kV nominal, 65172R1 -E2F2K -5393 3 -Phase unit. $ 16,995.00 50 Automatic PME -9 configuration, Padmounted Switchgear, 14.4 kV nominal 4 3 EA 3 -Phase unit with S &C 6802 control as 266152R3- E1F2KY2 -5393 specified in the technical specifications. $ 63,825.00 100 Automatic PME -10 configuration, Padmounted Switchgear, 14.4 kV nominal, 5 2 EA 3 -Phase unit with S &C 6802 control as 266242R3 -F2KY2 -5393 specified in the technical specifications. (2 motor operated switches) $ 62,940.00 100 Automatic PME -10 configuration, Padmounted Switchgear, 14.4 kV nominal, 3 -Phase unit with two (2) S &C 6802 6 2 EA controls as specified in the technical 366242R3- F2KY2 -5393 specifications. (3 motor operated switches) $ 86,580.00 100 Automatic PME -10 configuration, Padmounted Switchgear, 14.4 kV nominal, 3 -Phase unit with two (2) S &C 6802 7 2 EA controls as specified in the technical 466242R3- F2KY2 -5393 specifications. (4 motor operated switches) $ 95,085.00 100 Automatic PME -11 configuation, Padmounted Switchgear, 14.4 kV nominal, 8 2 EA 3 -Phase unit with S &C 6802 control as 266162R3- E1F2KY2 -5393 specified in the technical specifications. (2 motor operated switches) $ 62,872.00 100 Automatic PME -11 configuation, Padmounted Switchgear, 14.4 kV nominal, 3 -Phase unit with two (2) S &C 6802 9 2 EA controls as specified in the technical 366162R3- E1F2KY2 -5393 specifications. (3 motor operated switches) $ 86,495.00 100 10 8 EA Switch, Padmount, PME -9, 200A 65152R1- E1F2KM4 -5393 $ 16,530.00 50 11 1 EA Switch, Padmount, PME -10, 200A 65242R1- E1F2KM4 -5393 $ 17,660.00 50 12 2 EA Switch, Padmount, PME -11, 200A 65162R1- E2F2KM4 -5393 $ 17 312.00 50 Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 I JAt, 2800 Quail Run Dr, Ste. 100, Corinth, TX 76208 www.anixterpowersolutions.com RFP#5985 — Supply • Electric Utty Pad-Mounted Switchgears for the City of Denton Inside Sales Scott Price (940)270-7243 Outside Sales Jason Leake (940)765-4255 jason.leake@anixter.com RVP, Sales Daniel Brown (806)549-7681 (•m ".;kA • Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 EMMUT 3 City of Denton RFP for Supply of Electric Utility Pad-mounted Switchgears SOLICITATION CHECKLIST Check Document when Task to be Completed by Respondent Completed Pricing Sheet — Exhibit 1 3 Exhibit I — Pricing sheet 4 Exhibit 2 — General Provisions and Terms and Conditions --Review Review Exhibit 3 — Scope of Work/Technical Specifications 6 Review Exhibit 4 — Technical Drawings and Plans (if a licable) 7 Submission of Exhibit 5 — FTP Site Form (if applicable) 8 Review Exhibit 6 — Federal Grant Requirements if applicable) 9 Cover sheet Solicitation number Solicitation name V Firm name Firm address Contact name Contact phone Contact fax Website address Contact email address Solicitation Checklist Attachment A- Business Overview Questionnaire Document how firm meets minimum qualifications (Section 3) Detail to sypprt evaluation criteria Attachment B — Exception Form Attachment C — Safety Record Questionnaire (if applicable) Attachment D — Reference Form Attachment E — Conflict of Interest Questionnaire Form — with signature Attachment F - Acknowledgment Acknowledgment of Addenda Submission signed by authorized officer, in the order specified below Hard Copy Submission: If submitting a hard copy, the City requires one (1) original and three (3) copies, with the pricing sheet submitted electronically in excel or einailed in excel to L-' � identon.corn with the Solicitation # and name in the subject line. Electronic Submission: If submitting an electronic proposal only, email to Ebidsk).cityol'dentori.com with the Solicitation 4 and name in the subject line. The pricing sheet (Exhibit 1) must be in excel format. Submit response, with tabs marking each section, in the following order: Order for Submission Document I Cover Sheet 2 Pricing Sheet — Exhibit 1 3 Solicitation Checklist 4 Attachment A- Business Overview Questionnaire 5 Attachment B — Exception Form 6 Attachment C — Safety Record Questionnaire (if applicable) 7 Attachment D — Reference Form 8 Attachment E Conflict of Questionnaire Form 9 Attachment F - Acknowledgment RFP 5985 - Main Document Page 10 of 17 Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad-Mounted Switchgears Ell *1KIVA I M, I 11004VAMNAFF1 11ilill Iri o� ii;iiminil flylj� 1, Contract Information (for formal contracting purposes): Thefiollowing information will be used to write a contract, should yourfirm be selected for award. • Finn's Legal Name: Anixter Power Solutions • Address: 2800 Quail Run Dr, Corinth, TX 76208 0 Agent Authorized to sign contract (Name): Daniel W. Brown 0 Agent's email address: daniel.brown4t.) ,anixter.com 2, Subsidiary of. N/A 3. Organization Class (circle): Partnership Corporation Individual Association 4. Tax Payer ID#: 36-2361285 5, Date Established: locally in 1953 as Temple, Inc.; Anixter established in 1957. 6. Historically Underutilized Business: Yes o@ 7. Doe s. you s M any have an established physical presence in the State of Texas, or the City of Denton? � Yes No, in which? State of Texas; Corinth, TX and multiple other locations. Please provide a detailed listing of all products and/or services that your company provides. Anixter Power Solutions is a full-line electrical utility distributor. We offer the following services in addition to our vast inventory: automation engineering, lay-down yards, job-site trailers, consignment yards, kitting and storm response. 9. Has your company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. No 10. Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. No RFP 5985 - Main Document Page 11 of 17 Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 EMMIff 3 City of Denton RFP for Supply of Electric Utility Pad-Mounted Switchgears Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). No 12. Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and/or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? N/A; safety program and training exceed OSIIA standards. hqp //www.osha.g.Qv/ Ls/o ty —STANDAW2,S& tog p ---- shaweb/owasrch. search f6Kp1Zp _1� level =l&j) kevvalue=1926 13. Resident/Non-Resident Bidder Determination: Texas Government Code Section 2252.002: Non-resident bidders. Texas law prohibits cities and other governmental units from awarding contracts to a non-resident firm unless the amount of such a bid is lower than the lowest bid by a Texas resident by the amount the Texas resident would be required to underbid in the non-resident bidders' state. In order to make this determination, please provide the name, address and phone number of: a. Responding firms principle place of business: 2800 Quail Run Dr, Ste 100 Corinth, TX 76208 b. Company's majority owner principle place of business: Anixter, Glenview, IL c. Ultimate Parent Company's principle place of business: 2301 Patriot Blvd Glenview, IL 60026 RFP 5985 - Main Document Page 12 of 17 Contract 5985 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad-Mounted Switchgears 14. Provide details to support the evaluation criteria, including experience and delivery. Anixter Power Solutions is committed to meeting delivery requirements as outlined in our quotation. We have over 60 years of experience handling anything from blanket agreements to full-line integrated supply arrangements. We maintain over $50 million worth of inventory in the state of Texas to meet the needs of our customers. Because of our inventory position, we are the preferred distributor of many organizations for emergency outage response. We always, strive to exceed the expectations of our customers. 15. Provide details on how firm meets the minimum qualifications stated in this Main document Section 3. a, The details must be completed on this form, and shall not point to another document in the respondent's proposal, b. Sign below and return form with final submission. Over 60 years of experience managing supply agreements in the state of Texas. We currently manage the wire and meter blankets for the City of Denton. In addition to the City of Denton, HD Supply manages the following blankets across the state: Integrated Supply Agreements: CoSery Electric (Since 1999), Sharyland Utilities (Since 1996), Tri-County Electric, Lamar Electric, Oncor and Centerpoint Energy Blankets: CPS San Antonio, Lubbock Power & Light, City of San Augustine and City of Brownfield. I certify that firm meets the minimum qualifications as stated in this Main document, Section 3. Company RFP 5985 - Main Document Contract 5985 X)1_11514),ev �;_ I f Date Page 13 of 17 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad-Mounted Switchgears FAIIN 1""TRZ 1, m 1 %75131 11111, Any exceptions taken to this solicitation (including terms and conditions in Exhibit 2, the General Provisions and Terms and Conditions) must be itemized on the lines below, Additional pages may be added as needed. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description The above exceptions (and any additional pages identified) are the ONLY exceptions to the specifications, General Provisions and Terms and Conditions in Exhibit 2, and sample contract to this solicitation. I understand that the City may not accept additional exceptions produced after final submission of this proposal. Signature I =. Date No Exceptiops are taken to this solicitation or the General Provisions and Terms and Conditious in Exhibit 2. i __ Company RFP 5985 - Main Document Contract 5985 - ----- Date Page 14 of 17 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad-Mounted Switchgears 1I Please list three (3) Government references, other than the City of Denton, who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this solicitation. REFERENCE ONE GOVERNMENT/COMPANY NAME: CoSery Electric LOCATION: Corinth, TX CONTACT PERSON AND TITLE: Kyle Pastorius — Account Manager TELEPHONE NUMBER: (940)270-7284 SCOPE OF WORK: Integrated Supply CONTRACT PERIOD: 1999 - Present REFERENCE TWO GOVERNMENT/COMPANY NAME: Lubbock Power & Light LOCATION: Lubbock, TX CONTACT PERSON AND TITLE: Ronnie Dewbre — Account Manager TELEPHONE NUMBER: (806)789-9228 SCOPE OF WORK: Multiple Blankets: Wire, Poles, Meters, Switches CONTRACT PERIOD: 12 Month Increments REFERENCE THREE GOVERNMENT/COMPANY NAME: Greenville - GEUS LOCATION: Greenville, TX CONTACT PERSON AND TITLE: Ed Rush - Buyer TELEPHONE NUMBER: (903)457-2827 SCOPE OF WORK: Transformers, Switchgear, Spot Buys CONTRACT PERIOD: Various RFP 5985 - Main Document Contract 5985 Page 15 of 17 DocuSign Envelope ID: B1 I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad - mounted Switcligears 0 GOMM 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. ----------- — ------- -, ,Chcck,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 70' business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3j Name of local government officer about whom the information in this section is being disclosed. Name of Officer This section, (item 3 including subparts A, 13, 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? = Yes = No 11. 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 = No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. I have n Conflict of Interest to disclose. Signature Lf vernfor(doing tlrsirfcss with the governmental entity Date .. . . ........ ---- RFP 5985 - Main Document Contract 5985 Page 16 of 17 DocuSign Envelope ID: BI I E784C-3A74-44DA-A409-15881ADC3E91 ENUMUT 3 City of Denton RFP for Supply of Electric Utility Pad-mounted Switchgears I NN ' 4 004 1�4 0 - N 191511 1 11 1 1 ` I I I I] The undersigned agrees this submission becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the specification, drawings, exhibits and other documents; the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of materials and equipment; and all other matters that will be required for the work before submitting a response. The undersigned agrees, if this submission is accepted, to furnish any and all items/services upon which prices are offered, at the price(s) and upon the terms and conditions contained in the specification. The period for acceptance of this submission will be 120 calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this submission has not been prepared in collusion with any other respondent, nor any employee of the City of Denton, and that the contents of this submission have not been communicated to any other respondent or to any employee of the City of Denton prior to the acceptance of this submission. Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section I et seg., and which arise under the antitrust laws of the State of Texas, Tex. Bus, & Com, Code, Section 15.01, �et sec. The undersigned affirms that they have read and do understand the specifications, all exhibits and attachments contained in this solicitation package. The undersigned agrees that the solicitation package posted on the website are the official specifications and shall not alter the electronic copy of the specifications and/or pricing sheet (Exhibit 1), without clearly identifying changes. The undersigned understands they will be responsible for monitoring the City of Denton Purchasing Website at: otdenton.coni/ind X-Asx2pq to ensure they have downloaded and signed all addendum(s) required for submission with their response. I certify that I have made no willful misrepresentations in this submission, nor have I withheld information in my statements and answers to questions. I am aware that the information given by me in this submission will be investigated, with my full permission, and that any misrepresentations or omissions may cause my submission to be rejected, Acknowledge receipt of following addenda to the solicitation: Addendum No I Dated Addendum No 2 Dated Addendum No 3 Dated NA ELAND ADDRESS OF COMPANY: 7 Tel. No. Email. RFP 5985 - Main Document Contract 5985 Received Received Received Title Fax No. 7_�/3 Page 17 of 17 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -106, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for tree trimming services for Denton Municipal Electric (DME); providing the expenditure of funds therefor; and providing an effective date (RFP 5991- Electric Utility Line Tree Trimming Services awarded to ABC Professional Tree Services, Inc., in a three (3) year not -to- exceed amount of $3,849,256.50). The Public Utilities Board recommends approval (6 -0). RFP INFORMATION Tree trimming is required to maintain clearance from overhead lines according to industry standards. The amount of trimming to be performed on an annual basis is estimated based on recent performance and expected construction projects. Tree Trimming services provide the following benefits to Denton Municipal Electric: 1. Trimming individual feeders as projects ensures that the entire feeder is trimmed for the best value. 2. Accessibility will be easier for crews to perform routine maintenance on the overhead lines and structures. 3. Accessibility of easements on new construction projects. 4. During thunderstorms, ice storms, and high winds damage will be less likely to happen if the vegetation around the overhead power lines is maintained to the electric industry standard. Request for Proposals were sent to 146 prospective suppliers. One proposal from ABC Professional. Inc. was received. Confidential negotiations were completed and a Best and Final Offer (BAFO) was requested from ABC Professional Tree Services, Inc. The BAFO resulted in an annual estimated savings of $83,829 and an estimated $251,487 savings over the (3) year period (Exhibit 1). ABC Professional Tree Services, Inc. is a well- established business and has provided quality work for the City of Denton in the years past. They have provided a consistent, stable work force and a Certified Arborist to supervise the crews. Since using this contractor, DME has trimmed hundreds of miles of lines with few complaints. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) City of Denton Page 1 of 3 Printed on 1/28/2016 File #: ID 16 -106, Version: 1 On January 25, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award to ABC Professional Tree Services, Inc., in a three (3) year not -to- exceed amount of $3,849,256.50. PRINCIPAL PLACE OF BUSINESS ABC Professional Tree Services, Inc. Webster, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION Funding for this service is allocated in Denton Municipal Electric Operating Fund account 600200.7899.5830 or appropriate Capital Project accounts. Purchase Orders will be issued on an as needed basis. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities EXHIBITS Exhibit l: Evaluation/Ranking sheet Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -106, Version: 1 For information concerning this acquisition, contact: Phil Williams at 349 -8487. City of Denton Page 3 of 3 Printed on 1/28/2016 EXHIBIT 1 City Council Tabulation RFP 5991 Electric Utility Line Tree Trimming Services SECTION I- DESIGNATED CIRCUIT TRIMMING: Furnish all supervision, labor, traffic control personnel as needed to comply with DME Tree Trimming Specifications for the following designated circuits up to 25KV: ABC Professional Tree Services, Inc. Webster, TX material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines ORIGINAL PRICING Item This section includes distribution, transmission projects, line extensions, ROW Clearing as needed. UOM Type of Service Requested will have a minimum S of clearance around the bottom of the pole. Circuit Total 1 345KV. LS NL -221 Circuit UOM $96,460.90 2 Extended Annual Cost LS NL -212 Circuit $ 29.15 $21,327.08 3 1800 LS NL -223 Circuit $ 113.40 $37,767.86 4 250 LS FW -223 Circuit $ 159.65 $138,060.00 5 Trim and Brush Pick -up Rate: Hourly labor and equipment for one crew with two persons (one LS FW -224 Circuit 15 $51,536.10 6 One Crew at Standard hourly rate LS DN -211 Circuit 16 $11,625.00 7 1 One Crew at Overtime hourly rate LS KR -211 Circuit C $16,265.32 8 1350 LS KR -222 Circuit $ 46.87 $41,037.50 9 100 LS BB -212 Circuit $ 70.30 $8,970.00 10 1350 LS BB -213 Circuit $ 29.15 $83,950.00 11 100 LS IN -223 Circuit $ 43.72 $34,342.54 12 1350 LS DN -212 Circuit $ 25.24 $26,800.00 22 SECTION ITOTAL: $568,14230 SECTION II - HOURLY RATES FOR PROJECTS, "HOT SPOT" AND INCIDENTAL SERVICES This section includes distribution, transmission projects, line extensions, ROW Clearing as needed. Distribution Projects /Line Extension Tree Trimming - Contractor is to furnish all supervision, labor, traffic control personnel, material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines as needed to comply with DME Tree Trimming Specifications for distibution lines up to 25KV. All poles will have a minimum S of clearance around the bottom of the pole. Transmission Projects /Line Extensions /ROW Clearing /Mowing/Tree Trimming - Furnish all supervision, labor, traffic control personnel, material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines as needed to comply with DME Tree Trimming Specifications for Transmission Lines up to 345KV. Item simae Annual UOM Type of Service Requested Hourly Rate Extended Annual Cost A Aerial Lift Crew Rate: Hourly labor and equipment for 55' minimum ariel working height with one crew with three persons (one working Foreman with COL, one $ 29.15 qualified line clearance tree trimmer with CDL and one trimmer trainee or groundman) 13 1800 HR One Crew at Standard hourly rate (with 8 hours advance notice) $ 113.40 $204,120.00 14 250 HR One Crew at Emergency hourly rate( with less than 8 hours notice) $ 159.65 $39,912.50 B Trim and Brush Pick -up Rate: Hourly labor and equipment for one crew with two persons (one working foreman with COIL and one ground man) 15 1600 1 HR One Crew at Standard hourly rate $ 84.25 $134,800.00 16 250 HR 1 One Crew at Overtime hourly rate $ 126.38 $31,595.00 C Individual Labor and Equipment Rates: Hourly labor or equipment rates as needed 17 1350 HR General Foreman/ISA Certified Arborist- standard hourly rate $ 46.87 $63,274.50 18 100 HR General Foreman/ISA Certified Arborist- overtime hourly rate $ 70.30 $7,030.00 19 1350 HR Foreman Tree Trimmer (climbing) - standard hourly rate $ 29.15 $39,352.50 20 100 HR Foreman Tree Trimmer (climbing) - overtime hourly rate $ 43.72 $4,372.00 21 1350 HR Line Clearance Trainee or Groundman/Flagman - standard hourly rate $ 25.24 $34,074.00 22 100 HR Line Clearance Trainee or Groundman/Flagman - overtime hourly rate $ 37.85 $3,785.00 23 1350 HR General Foreman Vehicle- standard hourly rate $ 12.36 $16,686.00 24 250 HR Equipment Operator (tractor) - standard hourly rate $ 29.15 $7,287.50 25 50 HR Equipment Operator (tractor) - overtime hourly rate $ 43.72 $2,186.00 26 1650 HR Aerial Lift with dump bed and disc chipper 75 foot minimum working height and $ 32.96 $54,384.00 associated equipment. 27 1650 HR Chip Truck, 10 cubic yard covered dump body with disc chipper and associated $ 24.72 $40,788.00 equipment. 28 250 HR Tractor, WD with bush hog and associated equipment. $ 66.95 $16,737.50 29 1650 HR Chipper only (DISC only). $ 7.73 $12,754.50 30 80 HR Hydro Ax Tree Shredder - Larae - rate to include all operational costs. (Operator, $ 248.72 $19,897.60 fuel, and maintenance 31 80 HR Hydro Ax Tree Shredder -Small - rate to include all operational costs. (Operator, $ 199.00 $15,920.00 fuel, and maintenance) BAFO Circuit Total $72,345.90 $21,327.08 $37,767.86 $103,545.00 $38,652.10 $11,625.00 $16,265.32 $41,037.50 $8,970.00 $62,963.00 $34,342.54 $26,800.00 $475,64130 Hourly Rate Extended Annual Cost $ 113.40 1 $204,120.00 $ 159.65 $39,912.50 $ 84.25 1 $134,800.00 $ 126.38 $31,595.00 $ 46.87 $63,274.50 $ 70.30 $7,030.00 $ 29.15 $39,352.50 $ 43.72 $4,372.00 $ 25.24 $34,074.00 $ 37.85 $3,785.00 $ 12.36 $16,686.00 $ 29.15 $7,287.50 $ 43.72 $2,186.00 $ 32.96 $54,384.00 $ 24.72 $40,788.00 $ 66.95 $16,737.50 $ 7.73 $12,754.50 $ 273.59 $21,887.20 $ 225.00 $18,000.00 EXHIBIT 1 32 40 HR Giraffe All-Terrain Tree Trimmer - rate to include all operational costs. (Operator, $ 113.00 $4,520.00 $ s72.5s $6,725.90 $ s72.5s fuel, and maintenance) $ 772.5s $3,862.95 33 80 HR 18 Wheel Tractor Trailer - rate to include all operational costs. (Operator, fuel, $ 108.00 $8,640.00 permits and maintenance) D Tree Removal Rates: To be utilized at sole discretion of DME to have contract crews while working on the associated project or area to remove entire trees as identified by DME. Item UOM Tree Diameter Removal Rate Extended Annual Cost 34 50 EA 3 " -6 "Dbh $ 36.05 $1,802.50 35 30 EA > 6" - 12" Dbh $ 216.30 $6,489.00 36 20 EA > 12" - 18" Dbh $ 409.94 $8,198.80 37 10 EA > 18" Dbh $ 672.59 $6,725.90 38 5 EA > 18 -24" Dbh $ 672.59 $3,362.95 39 5 EA > 24 -30" Dbh $ 772.59 $3,862.95 * Any tree removal over 30" goes to hourly rates based on hourly crew rate* Herbicide Applications: The company making the application is responsible for the purchase, storage,record keeping and disposal of herbicides. Herbicides will only be applied by qualified applicators. Herbicidecrews, tree crews, and mowing crews are required to have at least one individual on the crew at all times, whois qualified to apply herbicides. A qualified applicator is an individual who has been trained regarding the product and application method, and meets any federal, state, and local laws E and regulations. This individual may be required to hold a certified applicators license, or be under the direct supervision of a certified applicator.This will depend upon state laws and regulations where the application is made. Supervisors of qualified applicators are required to hold a certified applicators license in the state or states in which they supervise crews. A marking agent (die) will be mixed with and used on applications to mark where herbicied has been applied. Estimated Item Annual UOM Application Quantitv 40 55 Gal Herbicide Application - Price per gallon. $ 112.98 $6,213.90 41 100 HR Herbicide Spray Rig - rate to include all operational costs. (Operator, fuel, permits $0 00 and maintenance SECTION II TOTAL: $798,772.60 $ 124.30 $4,972.00 $ 108.00 $8,640.00 Removal Rate I Extended Annual Cost I $ 36.05 $1,802.50 $ 216.30 $6,489.00 $ 409.94 $8,198.80 $ s72.5s $6,725.90 $ s72.5s $3,362.95 $ 772.5s $3,862.95 Application Rate Extended Annual Cost $ 112.98 $6,213.90 $ 41.50 $4,150.00 SECTION 11 TOTAL: $807,444.20 GRAND TOTAL $1,366,914.90 $1,283,085.50 (SECTIONS 1 -11): EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD January 25, 2016 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 25, 2016 at 9:02 a.m. in the Service Center Training Room at the Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Vice Chair Phil Gallivan Ex Officio Members: George Campbell, City Manager, Howard Martin, ACM Utilities OPEN MEETING INDIVIDUAL CONSIDERATION B. PUB16 -006 Receive a report, hold a discussion and give staff direction regarding a recommendation to the City Council that it adopt an ordinance accepting competitive proposal(s) and awarding a contract for professional utility line tree trimming services for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5991 - Electric Utility Line Tree Trimming Services for a three (3) year not -to- exceed amount of $3,849,256.50). Attachments: Exhibit 1 - Evaluation Sheet Exhibit 2 - Tree Trimming Presentation Brent Heath, Exec Mgr. of Energy Delivery, introduced Brad Watts, DME Line Superintendent. Watts gave the Transmission and Distribution Vegetation Management Program presentation. The overview included safety, minimize tree - related outages, maintaining positive relations with customers, use sound environmental practices and comply with NERC standards. Watts also showed maps and photographs during his presentation. Summary: Tree related outages have been reduced 61% since 2009 DME continues to maintain reliable T &D systems, with great customer service DME's infrastructure continues to improve and expand thru feeder extension projects, new transmission lines, and new substations Draft Minutes of the Public Utilities BoarcVXIf i&JT 2 January 25, 2016 Page 2 of 2 Tree Trimming is needed to address new vegetation growth due to over 20 inches of rain during 2015, and due to new capital improvement projects: DME recommends adopting this new vegetation management RFP plan that has options to renew for additional years. The annual estimated contract is $1,283,085.50, with a full three year renewal amount that will not exceed $3,849,256.50. Bynum asked if there are complaints. Watts answered there are both. People want their trees but sometimes are planted in the wrong spot. Staff works with the customers extensively. Bynum asked how expensive it is to go underground with utilities. Heath answered in new residential areas, it is now required. In existing areas it is accomplished as much as possible and as funds are available. Jackson asked how many bids there were. Watts answered only one this year. There was a motion by Board Member Parker to approve items B, second by Board Member Bynum vote 6 -0 approved. Adjournment 10:38 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR TREE TRIMMING SERVICES FOR DENTON MUNICIPAL ELECTRIC (DME); PROVIDING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5991— ELECTRIC UTILITY LINE TREE TRIMMING SERVICES AWARDED TO ABC PROFESSIONAL TREE SERVICES, INC., IN A THREE (3) YEAR NOT- TO- EXCEED AMOUNT OF $3,849,256.50). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility line tree trimming 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 5991 ABC Professional Tree Services, Inc. $3,849,256.50 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, EXHIBIT 3 approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5991 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 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY MM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ABC PROFESSIONAL TREE SERVICES, INC. (FILE 5991) THIS CONTRACT is made and entered into this date by and between ABC PROFESSIONAL TREE SERVICES, INC., a corporation, whose address is 201 FLINT RIDGE ROAD, WEBSTER, TX 77598, 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 5991- ELECTRIC UTILITY LINE TREE TRIMMING 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." RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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: BY: RFP4 5991 CONTI�A�T�,R BY: AUTHORIZED SIGNATURE 1/21/2016 Date: Martin Arriola Name: Title: Manager 281 - 280 -1115 Phone Number: CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $3,849,256.50. 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. RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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. RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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. C. If the City or the City's representative notifies the Contractor that any worker is incompetent, RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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, RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 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. RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 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 RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 Da observed If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. 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). RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 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 RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions RFP #5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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. • Should any of the required insurance be provided under a claims made form, Contractor RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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 no respect to negligent acts, errors or omissions required under this Agreement. RFP4 5991 t less than $1,000,000.00 per claim with in connection with professional services is DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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. RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A 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. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: RFP4 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 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 5991 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EX411111MV 4 RFP 5991 Electric Utility Line Tree Trimming Services SECTION I- DESIGNATED CIRCUIT TRIMMING: Furnish all supervision, labor, traffic control personnel, material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines as needed to comply with DME Tree Trimming Specifications for the following designated circuits up to 25KV: Item UOM Type of Service Requested Circuit Total 1 LS NL -221 Circuit $72,345.90 2 LS NL -212 Circuit $21,327.08 3 LS NL -223 Circuit $37,767.86 4 LS FW -223 Circuit $103,545.00 5 LS FW -224 Circuit $38,652.10 6 LS DN -211 Circuit $11,625.00 7 LS KR -211 Circuit $16,265.32 8 LS KR -222 Circuit $41,037.50 9 LS BB -212 Circuit $8,970.00 10 LS BB -213 Circuit $62,963.00 11 LS IN -223 Circuit $34,342.54 12 LS DN -212 Circuit $26,800.00 SECTION II - HOURLY RATES FOR PROJECTS, "HOT SPOT" AND INCIDENTAL SERVICES This section includes distribution, transmission projects, line extensions, ROW Clearing as needed. Distribution Projects /Line Extension Tree Trimming- Contractor is to furnish all supervision, labor, traffic control personnel, material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines as needed to comply with DME Tree Trimming Specifications for distibution lines up to 25KV. All poles will have a minimum 5' of clearance around the bottom of the pole. Transmission Projects /Line Extensions /ROW Clearing /Mowing /Tree Trimming- Furnish all supervision, labor, traffic control personnel, material, supplies, tools, equipment and transportation to trim and remove trees, brush, and vines as needed to comply with DME Tree Trimming Specifications for Transmission Lines up to 345KV. Item Estimated Annual UOM Type of Service Requested Hourly Rate Extended Annual Cost A — Aerial Lift Crew Rate: Hourly labor and equipment for 55' minimum ariel working height with one crew with three persons (one working Foreman with CDL, on qualified line clearance tree trimmer with CDL and one trimmer trainee or groundman) 13 1800 HR One Crew at Standard hourly rate (with 8 hoursadvance notice) $ 113.40 $204,120.00 14 250 HR One Crew at Emergency hourly rate( with less than 8 hours notice) $ 159.65 $39,912.50 B — Trim and Brush Pick -up Rate: Hourly labor and equipment for one crew with two persons (one working foreman with CDL and one ground man) 15 1600 HR One Crew at Standard hourly rate $ 84.25 $134,800.00 16 250 HR One Crew at Overtime hourly rate $ 126.38 $31,595.00 C Individual Labor and Equipment Rates: Hourly labor or equipment rates as needed 17 1350 HR General Foreman /ISA Certified Arborist- standard hourly rate $ 46.87 $63,274.50 18 100 HR General Foreman /ISA Certified Arborist- overtime hourly rate $ 70.30 $7,030.00 19 1350 HR Foreman Tree Trimmer (climbing) - standard hourly rate $ 29.15 $39,352.50 20 100 HR Foreman Tree Trimmer (climbing)- overtime hourly rate $ 43.72 $4,372.00 21 1350 HR Line Clearance Trainee or Groundman /Flagman standard hourly rate $ 25.24 $34,074.00 22 100 HR Line Clearance Trainee or Groundman /Flagman - overtime hourly rate $ 37.85 $3,785.00 23 1350 HR General Foreman Vehicle- standard hourly rate $ 12.36 $16,686.00 24 250 HR Equipment Operator (tractor) - standard hourly rate $ 29.15 $7,287.50 25 50 HR Equipment Operator (tractor) - overtime hourly rate $ 43.72 $2,186.00 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EX4111MV 4 26 1650 HR Aerial Lift with dump bed and disc chipper 75 foot minimum working height and $ 32.96 $54,384.00 associated equipment. 27 1650 HR Chip Truck, 10 cubic yard covered dump body with disc chipper and associated $ 24.72 $40,788.00 equipment. 28 250 HR Tractor, WD with bush hog and associated equipment. $ 66.95 $16,737.50 29 1650 HR Chipper only (DISC only). $ 7.73 $12,754.50 30 80 HR Hydro Ax Tree Shredder - Large - rate to include all operational costs. $21,887.20 (Operator, fuel, and maintenance) $ 273.59 31 80 HR Hydro Ax Tree Shredder Small - rate to include all operational costs. (Operator $18,000.00 fuel, and maintenance) $ 225.00 32 40 HR Giraffe All- Terrain Tree Trimmer - rate to include all operational costs. $4,972.00 (Operator, fuel, and maintenance) $ 124.30 33 80 HR 18 Wheel Tractor Trailer - rate to include all operational costs. (Operator, fuel, $ 108.00 $8,640.00 1 permits and maintenance) D Tree Removal Rates: To be utilized at sole discretion of DIME to have contract crews while working on the associated project or area to remove entire trees as — identified by DIVE. Item UOM Tree Diameter Removal Rate Extended Annual Cost 34 50 EA 3" - 6" Dbh $ 36.05 $1,802.50 35 30 EA > 6" - 12" Dbh $ 216.30 $6,489.00 36 20 EA > 12" - 18" Dbh $ 409.94 $8,198.80 37 10 EA > 18" Dbh $ 672.59 $6,725.90 38 5 EA > 18 -24" Dbh $ 672.59 $3,362.95 39 5 EA > 24 -30" Dbh $ 772.59 $3,862.95 * Any tree removal over 30" goes to hourly rates based on hourly crew rate* Herbicide Applications: The company making the application is responsible for the purchase, storage,record keeping and disposal of herbicides. Herbicides will only be applied by qualified applicators. Herbicidecrews, tree crews, and mowing crews are required to have at least one individual on the crew at all times, whoi qualified to apply herbicides. A qualified applicator is an individual who has been trained regarding the product and application method, and meets any federal, state E and local laws and regulations. This individual may be required to hold a certified applicators license, or be under the direct supervision of a certified applicator.This will depend upon state laws and regulations where the application is made. Supervisors of qualified applicators are required to hold a certified applicators license in the state or states in which they supervise crews. A marking agent (die) will be mixed with and used on applications to mark where herbicied has been applied. Estimated Item Annual UOM Application Application Rate Extended Annual Cost Quantit 40 55 Gal Herbicide Application - Price per gallon. $ 112.98 $6,213.90 41 100 HR Herbicide Spray Rig - rate to include all operational costs. (Operator, fuel, $4,150.00 permits and maintenance ) $ 41.50 DocuSign Envelope ID: 477B6DE7- 16CD- 469B- 8E82- 808DA9E9521A EXHIBIT 4 F 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 ❑I have no Conflict of Interest to disclose. 5 DocuSigned by: Mdti, �� � 1/21/2016 �@Ci€c�ift��b43doing business with the governmental entity Date EXHIBIT 4 Certificate Of Completion Envelope Id: 477B6DE716CD469B8E82808DA9E9521A Subject: Please DocuSign: REVISED 5991 Contract Documents for Electric Utility Tree Trimming Service: Source Envelope: Document Pages: 33 Signatures: 5 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC- 08:00) Pacific Time (US & Canada) Record Tracking Status: Original 1/21/2016 2:09:30 PM 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: Martin Arriola ygarza @abctree.com Manager ABC Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 1/15/2016 2:40:49 PM ID: 2a522f8b- 9e20- 4efc- beb7- bcdf5ca86fd9 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 C. 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 ED—Signed by: BOFCF1F889B84FB... Using IP Address: 12.163.186.12 Ell ... Signed 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: 1/21/2016 2:21:06 PM Viewed: 1/21/2016 2:21:20 PM Signed: 1/21/2016 2:22:05 PM Sent: 1/21/2016 2:22:07 PM Viewed: 1/21/2016 2:22:56 PM Signed: 1/21/2016 2:25:40 PM Sent: 1/21/2016 2:25:44 PM Viewed: 1/21/2016 2:48:41 PM Signed: 1/21/2016 2:48:54 PM Sent: 1/21/2016 2:48:56 PM Viewed: 1/22/2016 6:25:37 AM ' 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 Julia Klinck� Sent: 1/21/2016 2:25:42 PM julia.klinck@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Sherri Thurman Sent: 1/21/2016 2:25:42 PM sherri.thurman @cityofdenton.com 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 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: Brad Watts brad.watts@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 4 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered ID: Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 1/21/2016 2:48:56 PM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Martin Arriola, Robin Fox 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. 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EXHIBIT 4 Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e -mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTON File #: ID 16 -113, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of October 30, November 2, November 10, and November 17, 2015. City of Denton Page 1 of 1 Printed on 1/28/2016 CITY OF DENTON CITY COUNCIL MINUTES October 30, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Friday, October 30, 2015 at 2:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tern Gregory, and Mayor Watts. ABSENT: Council Member Wazny. City Manager Campbell stated that both Council Members Wazny and Briggs asked if Work Session Item IA could be postponed to the next meeting. It was also recommended to postpone Item IA on the Closed Session and Individual Items A, B and C. Consensus of the Council was to postpone the listed items to the November 10'h meeting. Mayor Pro Tern Gregory indicated that he would like to ask a question in Closed Meeting regarding the convention center. Consensus of the Council was that Closed Session Item I would be considered during the Closed Session and also put on the November 10' meeting agenda. Work Session Reports A. ID 15 -1058 Receive a report, hold a discussion, and give staff direction regarding a proposed Economic Development Chapter 380 Grant Agreement with O'Reilly Hotel Partners Denton for a convention center and hotel development to be located in Rayzor Ranch Town Center and a proposed third amendment to the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). This item was not considered. B. ID 15 -1025 Receive a report, hold a discussion, and give staff direction regarding a management contract between the City of Denton and the Dallas Entrepreneur Center for the management of co- working space and an entrepreneur center located at 608 East Hickory, Denton, Texas, 76201. Aimee Bissett, Director of Development Services, presented an update on the project. The contract had been updated with a few minor changes. She discussed performance measures and statistics for the program. The statistics were relative to hi -tech jobs and relationships of that to small businesses and associated salaries. Membership requirements included membership profile and eligibility plus company goals and agreements. Indicators of success included number of new tech jobs created, number of new tech companies born, number of tech companies graduated, average salary across the program, economic impact - wages and investment, redevelopment/ increased property values, growth in total number of tech jobs in Denton, and capital funding - total dollars invested. Mayor Watts indicated that he supported the idea but would feel more comfortable with staff involved in the bench marks to be completed sooner than later. He needed some kind of measurement for this incentive as it was different from others that had been done. City of Denton City Council Minutes October 30, 2015 Page 2 Bissett stated that the proposal related to the City strategic plan in Key Focus Area 3 regarding economic development to promote a business - friendly environment and encourage development, redevelopment, recruitment, and retention. In terms of the contract, DEC would be involved in the day to day management and operations of the Center, including recruitment, events and training. They would also assist with finalizing eligibility fees, performance measures between now and when the program launched. Ten percent of the membership fees collected would be paid monthly to Rail Yard partners as a contribution towards operating expenses. Ninety percent would be utilized for daily operations of the entrepreneurial space in terms of programming, supplies, amenities, marketing, etc. This would be an annual contract renewable for five years. 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 -1059 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 O'Reilly Hotel Partners Denton and a proposed third amendment to the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). This discussion shall include commercial and financial information the City Council has received from O'Reilly Hotel Partners Denton and Allegiance Hillview (RED Development), business prospects 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 O'Reilly Hotel Partners Denton and the amendment of the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). B. ID 15 -1078 Consultation with Attorneys Under Texas Government Code Section 551.071. Consult with the City's attorneys regarding legal issues associated with a proposal for amending the Oak - Hickory Historic District overlay ordinance where a discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. C. ID 15 -1087 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. City of Denton City Council Minutes October 30, 2015 Page 3 D. ID 15 -1088 Deliberations Regarding Real Property Under Texas Government Code Section 551.072; Deliberations Regarding Economic Development Negotiations Under Texas Code Section 551.087; Consultation with Attorneys Under Texas Government Code Section 551.071 Receive information from staff, discuss, deliberate and provide staff with direction regarding the potential acquisition, exchange, lease or sale of real property located generally in the 200 block of N. Cedar and the 200 block of W. McKinney in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. Following the completion of the Closed Meeting, the City Council convene in an Open Meeting to consider the following items: Mayor Watts announced that Items A, B and C would not be considered at this meeting and moved to the November 10th meeting. 1. Items for Individual Consideration A. ID 15 -1060 Consider adoption of an ordinance approving an Economic Development Agreement under Chapter 380 of the Local Government Code to promote economic development and to stimulate business activity in the city of Denton and under Chapter 351 to promote travel, tourism, meetings, conventions, and events for the economic growth of the city of Denton, between the City of Denton and O'Reilly Hotel Partners Denton (OHPD), regarding the development of an approximate 12 acre parcel of land generally located on the south side of U.S. Highway 380 (West University Drive) ending at Scripture Road, between I -35 and North Bonnie Brae Street in Denton, Texas; authorizing the expenditure of funds therefor; and providing an effective date. This item was not considered. B. ID 15 -1061 Consider adoption of an Ordinance of the City of Denton, Texas approving a third amendment to an Economic Development Program Grant Agreement dated June 15, 2010 between the City of Denton and Allegiance Hillview; and providing an effective date. This item was not considered. C. ID 15 -1062 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a Management Agreement between the City of Denton and O'Reilly Hotel Partners Denton for the management of the Denton Convention Center; and providing an effective date. City of Denton City Council Minutes October 30, 2015 Page 4 This item was not considered. Item E was considered. Ordinance No. 2015 -329 E. ID 15 -1080 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. John Cabrales, Assistant City Manager, presented the details of the revised lease agreement which would take the place of the draft that was included in the agenda backup. Sections 35, 36 and 37 were revised. Section 35 revisions included language that the City could terminate the lease for any reason but not until five years after the effective date of the lease. A 180 day notice would have to be provided for termination. Section 36 revisions included re- compensation back to the Center if the City terminated for any reason and was meant to include the value of improvements made to capture any in -kind materials or services. Section 37 revisions stated that the tenant could extend the terms of the lease for an additional 10 years at $2 per year. With regards to the ability to name the facility, the Center could present recommendations to Council, following the naming policy in place as it was still a city facility. Council Member Hawkins motioned, Council Member Briggs seconded to adopt the ordinance as revised. 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 Mayor Watts "aye ". Motion carried unanimously. Item D was considered. Ordinance No. 2015 -328 D. ID 15 -1026 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a Management Agreement between the City of Denton and the Dallas Entrepreneur Center for the management of the entrepreneur center located at 608 East Hickory, Suite 128, Denton, Texas, 76201; and providing an effective date. Aimee Bissett, Director of Development Services, stated that she would answer any questions Council still had. Council Member Johnson motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member "aye ". Motion carried unanimously. 2. Concluding Items City of Denton City Council Minutes October 30, 2015 Page 5 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 proclamation for Denton County Friends of the Family for their 35 years of service to the community. Mayor Pro Tem Gregory requested investigating ways to provide homes to homeless veterans and then apply that information to other groups. Council Member Johnson requested that information be posted on the website or email him the answers as to why trees on Teasley were being cut down. Council Member Hawkins asked about the progress to have high speed intereet in the City and whether an ad hoc committee should be formed to consider the issue. If so, he would like to be a part of that committee. With no further business, the meeting was adjourned 5:45 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 2, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Monday, November 2, 2015 at 11:30 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 -1074 Receive a report and hold a discussion regarding the 114th Congress, First Session, and outlook for the 114th Congress, Second Session, to include Budget and Tax Issues, Municipal Bonds, Highway and Transit Reauthorization, Public Safety, Community Development, the Marketplace Fairness Act, and other topics impacting local government. Ralph Garboushian and Joy Grewatz of CapitalEdge presented information concerning the federal legislative update. Broad highlights of the budget deal presented to the President were presented along with the cuts between defense and non - defense spending. The differences between the President's budget and Congress' budget were reviewed. A compromise had been reached regarding the budget in that any future budget battles would be postponed until after the presidential election. Other areas reviewed included: Budget overview — FY 2015 Appropriations HOME Program— a Senate bill omitted the HOME program with community development advocates pushing to put it back in the budget. It was still to be determined if it would receive funding. What happened in the future would depend on what happened with the election Council Member Wazny asked what CapitalEdge did for the city of Denton to justify their agreement. Garboushian stated that city officials were the best lobbyists. His role was to keep Council informed on the issues and provide direction on how to proceed. They also dealt with specific issues such as CDBG and HOME projects and preservation of that funding. Currently they were also working on PEG funding and preservation of that funding plus the highway transit bill to get more funds down to the local level. Their main form of contact was the weekly overview of what happened during the week in Congress. Mayor Pro Tem Gregory stated that their role also included identification of funds to other agencies that the City would benefit by informing staff and Council on those situations. Garboushian stated that his firm kept track of all kinds of grants that would benefit the City. While their role was one of a lobbyist, their goal was to provide staff support and point staff and Council in the right direction. City of Denton City Council Minutes November 2, 2015 Page 2 Council Member Hawkins questioned what sequestration would look like the day after this expired. Garboushian stated that it would depend on who would be in office at that time. It would go away when there was lots of mandatory spending of Social Security and Medicare. Council Member Roden stated that elected representatives did not think about the effect on municipalities when they made decisions but cities needed advocates to help remind them of how it would affect a city perspective. Mayor Pro Tem Gregory stated that another area to follow was any issue that might erode local control such as the cell tower issues. Garboushian continued with information on surface transportation and the transportation alternatives program. Council Member Wazny asked about red flags for 2015 -16, 2016 -17 and what the City needed to be proactive on. Garboushian stated that in 2016 the fight would be for local government programs, PEG grants, and after the election, a rewrite of the telecommunications program which would probably cause problems for cities. Council discussed renewables for Denton and the effect on future regulations that might affect Denton. A briefing on future topics might be considered. Garboushian stated that future issues included air transportation issues and the contract tower program. Council Member Hawkins asked about the Marketplace Fairness Act. Garboushian stated that it was part of the Internet Tax Freedom Act/Sale Tax Fairness /Local authority. 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 City of Denton City Council Minutes November 2, 2015 Page 3 or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Johnson stated that he had requested an Informal Staff Report on consulting fees but that CIP projects had been left out. He requested that the report be redone and include the CIP projects. Council Member Briggs requested a discussion regarding DME and gas wells. Council Member Wazny recommended that the meeting for November 10" be both a Work Session and a Regular meeting. Hold the discussion on DME and the convention center at the evening portion of the meeting so the public could attend. With no further business, the meeting was adjourned at 1:01 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 10, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, November 10, 2015 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tem Gregory, Council Member Wazny and Mayor Watts. ABSENT: Council Member Roden Work Session Reports A. ID 15 -1058 Receive a report, hold a discussion, and give staff direction regarding a proposed Economic Development Chapter 380 Grant Agreement with O'Reilly Hotel Partners Denton for a convention center and hotel development to be located in Rayzor Ranch Town Center and a proposed third amendment to the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). Jon Fortune, Assistant City Manager, presented background information on the formation of the project. The project would be located on Rayzor Ranch North property. The project comparisons between the former project and this project were reviewed in terms of size of the facility, revenue streams, financing, and new revenue for the project. Management responsibilities and economic impact were discussed with Council questioning the revenue generated from the proposal. Proposed OHPD incentives were presented. Council discussed what risks the City would have with the proposed incentives. Council Member Roden arrived at the meeting. Council discussed differences between Version 1 and Version 2 in terms of potential Convention and Visitor Bureau obligations, usage of HOT funds, financial risk to the ratepayer, and language in the 380 agreement. Aimee Bissett, Director of Development Services, presented information on the RED incentive, discussed the current RED incentive and proposed incentive. She discussed the Convention Center impact on RED. The RED agreement would have to be amended to carve out the O'Reilly project for a separate incentive agreement. Council discussed the proposal in terms of the impact to RED Development, sales tax increases at Rayzor Ranch North, and purpose of the trigger threshold of square footage for performance measure. Tim O'Reilly presented follow -up information on some of the Council's concerns. He represented a family of investors and not a single individual. They were at a point in the incentives that were as refined as much as possible. They already had financing, a design of the facility, and were working on the pricing for the facility. The proposal would be bringing a large financial incentive to the City. He presented reasons why the O'Reilly family picked Denton for this proposal. City of Denton City Council Minutes November 10, 2015 Page 2 Council discussed with O'Reilly the amount of interest rate percentage, amount of tax incentives which were required to satisfy investors, the fact that the incentives were based on performance measures, and continued support of the O'Reilly's in Denton. Scott Wagner, RED Development, discussed project details with the Council, analysis of the cost of investment to RED, the Convention Center as an amenity to Denton, and the fact that they were ready to begin the project. B. ID 15 -1104 Receive a report, hold a discussion, and give staff direction on the Denton Renewable plan and activities related to the future power supply plans to meet the City's growth and needs. Council Member Briggs requested that Council grant permission for Tom Smith to speak before the start of this item. Consensus of the Council was to allow Mr. Smith to make his presentation. Tom Smith spoke against the development of a natural gas facility. He felt solar and wind were better investments and advocated for a coalition on whether this was a good idea for Denton. Risks involved outdated technology, an environmental risk and a cost risk. Council Member Roden questioned Smith if Austin was at 23% renewals. Smith replied correct but the plan problem was how to balance renewals and he was not sure gas was a good answer any more. Mayor Pro Tem Gregory stated that the DME next step was towards 100% renewals but knew that when the sun didn't shine and the wind didn't blow there was no energy production and the technology was not quite there to store energy at a utility scale to fill the gap. In the future there would be no more conventional facilities. Smith replied that the industry was at the technological cusp with energy storage being deployed all over Texas. Between now and the time Denton would have to build a plant, the industry would be very close to having that storage technology available. He suggested larger storage facilities in order to have it available when needed instead of gas facilities. Mayor Pro Tem Gregory stated that conventional generation would be the generation for the overall grid for the foreseeable future; perhaps 20 years out. Smith stated that the correct question was if Denton was going to buy now, why take the risk knowing how the technology was developing. Council Member Johnson stated that sun and wind power could not be counted on at 100% if eliminating COLA and not build a gas plant. An open market purchase was too risky for rate payers and the battery technology was not there yet. Smith suggested the opportunity to use a new electronic control to shift peak usage or mitigate microspikes or drops to manage the peak for better use of resources. City of Denton City Council Minutes November 10, 2015 Page 3 Phil Williams, General Manager -DME, presented information on the Renewable Denton Plan in response to Council direction on renewable, rates and reliability. He indicated that there had been numerous discussions /presentations since 2009 with Council and the Public Utilities Board regarding renewable and backup generation. Numerous options and possibilities had been explored and discussed. Brian Daskam, DME, presented an update on public outreach, public comments and the results of the public survey. Council Member Briggs felt that the questions on the survey were leading and not objective. Williams continued with a review of the current energy portfolio mix, the projected energy mix with renewable Denton and expected emissions for the portfolio scenarios. Council discussed the importance that the new gas plants would not putting out massive amounts of pollutants, differences in emissions relative to cost of new plants; buying off the open market that would have emissions; and the need to compare equivalents among various cities for renewables and emissions. The rates with business as usual versus the Renewable Denton Plan were reviewed by Williams. The Renewable Plan would result in rate decreases beginning in 2020. He also presented figures for 83% and 70% without quick -start backup. Council discussed policy direction on how to move forward, establish a policy plan to attach to the proposal that showed Council support, and what happened to new gas powered plants in the future when the battery technology was developed. Council Member Wazny suggested slow things down, pull together citizen task force in the discussion, and consider a Request for Qualifications to start looking for a consultant specialist in energy issues and consulting other cities. Council Member Roden suggested moving in the direction presented and to not spend additional money for a consultant or delay with citizen committee as the City had the expertise in- house. Continue the discussion and head towards a December completion date. Council Member Hawkins agreed with the suggestion from Council Member Roden and to stay the course and proceed. Mayor Pro Tem Gregory noted support for Council Members Roden and Hawkins. The goals set more renewables for reliability and affordable rates. This was a balanced plan and felt that the City did not need a consultant to come up with a plan when one was already done. This had been a 5 -6 year process. Council Member Briggs was in favor of slowing down and waiting as some people in this room would be dead in 20 years. No one she spoke with was in favor of a gas plant. Council Member Johnson stated that he was not in favor of hiring a consultant as the City already had experts in -house who knew the issues. He felt the City was already headed in the right City of Denton City Council Minutes November 10, 2015 Page 4 direction. The question was to spend the money on this or take chances on the open market. It was not an environmental issue as gas was so much better than coal and if bought on the open market it might be making a worse investment on the emissions. He was in favor of continuing Council discussion over the next several meetings with the need to move on with a decision in order to have the plant ready when needed. He suggested having a public hearing for the next discussion. Mayor Watts wanted to make sure he had the information he needed as well as further discussion with Council. Council would be basing a decision on projections and needed more information on how they were created. He agreed that a public hearing would be in order on the issue. The Council did not consider the Closed Meeting items before the start of the regular meeting at 6:30 p.m. Those items were considered following the regular meeting. Special Called 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 -1181 Veteran's Day Proclamation Mayor Watts presented the proclamation for Veteran's Day. 3. ITEMS FOR INDIVIDUAL CONSIDERATION Ordinance No. 2015 -330 A. ID 15 -1060 Consider adoption of an ordinance approving an Economic Development Agreement under Chapter 380 of the Local Government Code to promote economic development and to stimulate business activity in the city of Denton and under Chapter 351 to promote travel, tourism, meetings, conventions, and events for the economic growth of the city of Denton, between the City of Denton and O'Reilly Hotel Partners Denton (OHPD), regarding the development of an approximate 12- acre parcel of land generally located on the south side of U.S. Highway 380 (West University Drive) ending at Scripture Road, between I -35 and North Bonnie Brae Street in Denton, Texas; authorizing the expenditure of funds therefor; and providing an effective date. Mayor Watts announced Items A, B, and C and noted that they would be discussed together but would be voted on individually. The following individuals spoke on the issue: Deborah Armintor, 2003 Mistywood Lane, Denton, 76209 - spoke in opposition City of Denton City Council Minutes November 10, 2015 Page 5 Lucas Hall, 815 Crest Oak Place, Denton, 76209 - spoke in opposition Jodi Ismert, 819 Anna, Denton, 76201 - spoke in opposition Jon Fortune, Assistant City Manager, presented information on Items A, B, and C and reviewed the details of the convention center development. This was an incentive agreement that would provide sales tax incentives to the developer. If the revenue was not generated, the incentive did not go back to the developer. There was also a limited management contract that provided the City a means to monitor and track the use of the HOT funds. The City would not be responsible for day -to -day management of the Center. One other element was the location of the convention center at Rayzor Ranch. Because the hotel would be in that development, there was a need to carve out 12 acres from the 380 agreement and recapture infrastructure costs from the area. Council Member Briggs asked if incentives such as this had ever been done before. Fortune stated that it had been done for 100% for a smaller number of years. Council Member Briggs expressed concern that this would be setting a bench mark for other developers who would want the same thing. Fortune stated that with a typical project staff would not be recommending this type of incentive but because of the history of the project, felt it was appropriate. The proposal shifted the risk from the City to the developer and did not feel that it would set a bench mark. Council Member Johnson stated that Council had conversations about the math around the project but never had hard numbers relating to the economic impact to the rest of the City. If there were 46,500 unique visitors per year who spent $60 per year out of the hotel room with an average of 3 nights $8.3 million would be realized outside the convention center. It was important to highlight that. The city would be getting more from the incentive due to the development. Fortune stated that staff had looked at the industry metrics on how much a convention attendee would spend per day outside of the hotel in the community in conjunction with the CVB. Council Member Roden stated that just looking at available meeting space, large scale events were not able to be held in Denton due to the lack of space. There also was no significant location for music venues. He felt there was still some confusion with the previous plan and the current proposal and questioned if taxpayers were paying for this. Fortune stated that there would be no diversion of existing revenue to the project; only taxes generated by the project itself. Council Member Roden questioned if the City would be liable if the convention center failed. Fortune stated that this with project, the developer financed the project. If it failed, the City would have no financial obligation to the project. Council Member Wazny felt that there were still concerns regarding the failure of the convention center. She was concerned that it was not good for Denton as it was an asset that could be sold. City of Denton City Council Minutes November 10, 2015 Page 6 The Council was premature in making a decision as they had not studied coast to coast the number of cities the same size as Denton with failed convention centers. Mayor Pro Tem Gregory stated that this was not a project pushed by staff. It was a project promoted by Council over a number of years and was a goal of Council and the Chamber. He felt the current proposal addressed almost every concern people had. It incentivized items that brought value to the City. He knew that there were agencies and volunteer groups that could not hold events in Denton due to the lack of space. Council Member Briggs stated that she was not opposed to incentives when done well and was not opposed to the convention center but was opposed to 100% 25 year incentive. She could not vote for the project. Mayor Watts stated that he was against the first version of the convention center. With this proposal O'Reilly was spending their own family money for the project. The developer had been around for 20 -30 years with quality projects all around the county and if they felt it would be a risk to their development they would not allow it. Council Member Roden motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", Council Member Briggs "nay ", Council Member Wazny "nay" and Mayor Watts "aye ". Motion carried with a 5 -2 vote. Ordinance No. 2015 -331 B. ID 15 -1061 Consider adoption of an ordinance of the City of Denton, Texas approving a third amendment to an Economic Development Program Grant Agreement dated June 15, 2010 between the City of Denton and Allegiance Hillview; and providing an effective date. This item was discussed with Item A. Council Member Hawkins motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", Council Member Briggs "nay ", Council Member Wazny "nay" and Mayor Watts "aye ". Motion carried with a 5 -2 vote. Ordinance No. 2015 -332 C. ID 15 -1062 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a Management Agreement between the City of Denton and O'Reilly Hotel Partners Denton for the management of the Denton Convention Center; and providing an effective date. This item was discussed with Item A. Council Member Johnson motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Council Member City of Denton City Council Minutes November 10, 2015 Page 7 Hawkins "aye ", Council Member Briggs "nay ", Mayor Pro Tem Gregory "aye ", Council Member Wazny "nay ", and Mayor Watts "aye ". Motion carried with a 5 -2 vote. Ordinance No. 2015 -333 D. ID 15 -1189 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of playground equipment for the Eureka 2 Playground Project, 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 5990- awarded to Play By Design in the amount of $95,811). Emerson Vorel, Director of Parks and Recreation, stated that this request was for a sole source for playground equipment for half of the equipment needed for the Eureka 2 Playground Project. The Parks Foundation had already paid for half of the equipment and this request would use city funds to pay for the other half. The Foundation would reimburse the City as additional funding was raised. If the Foundation did not raise the needed funds, the City would have had to purchase the equipment anyway. Pete Kamp, 110 Friar Tuck Circle, Denton, 76209 - spoke in favor. Council Member Wazny motioned, Mayor Pro Tem Gregory 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. 4. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda Council Member Briggs requested a report on the city of Allen adjournment time. Council Member Briggs requested a report on the Denton Record - Chronicle article about the City's dangerous intersections. City of Denton City Council Minutes November 10, 2015 Page 8 B. Possible Continuation of Closed Meeting topics, above posted. Mayor Watts announced that Council would be going back into Closed Session. 1. Closed Meeting: A. ID 15 -1113 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss, deliberate, and provide Staff direction regarding opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. This item was not considered. B. ID 15 -1059 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 O'Reilly Hotel Partners Denton and a proposed third amendment to the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). This discussion shall include commercial and financial information the City Council has received from O'Reilly Hotel Partners Denton and Allegiance Hillview (RED Development), business prospects 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 O'Reilly Hotel Partners Denton and the amendment of the economic development program grant agreement between the City of Denton and Allegiance Hillview (RED Development). This item was not considered. C. ID 15 -1191 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. D. ID 15 -1192 Deliberations Regarding Real Property - Under Texas Government Code Section 551.072; Deliberations Regarding Economic Development Negotiations - Under Texas Code Section 551.087; Consultation with Attorneys - Under Texas City of Denton City Council Minutes November 10, 2015 Page 9 Government Code Section 551.071. Receive information from staff, discuss, deliberate and provide staff with direction regarding the potential acquisition, exchange, lease or value of real property located generally in the 200 block of W. Mulberry, the 200 block of N. Elm, the 200 block of W. McKinney, the 200 block of N. Cedar, and the 200 block of E. McKinney in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential real property matter where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 17, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, November 17, 2015 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tem Gregory, Council Member Wazny, and Mayor Watts. ABSENT: Council Member Roden 1. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for November 17, 2015. Council Member Wazny requested that Items 4C, 4D and 4EE be pulled for individual consideration. Council Member Johnson asked about Item 4DD dealing with buying new trucks for Solid Waste. He questioned if these would be similar trucks as were currently in service or ones that might assist with the conditions of dumpsters on sidewalks. Vance Kemler, General Manager of Solid Waste and Recycling Services, stated that these trucks would replace the current trucks going out of service. Staff would return at a later date for a discussion on the options for the Downtown/University service area. Mayor Watts stated that Item 4JJ, the agreement with Zayo, did not have a time limit on the agreement and questioned if that was intentional. Howard Martin, Assistant City Manager, stated that the agreement would allow Zayo to look at the integrity of the system. He did not know how long that period of time would be to evaluate the system and determine all of the items needed to run fiber through the County /DISD system. City Attorney Burgess stated that the agreement only gave permission to access the current infrastructure and inspect what was there. It did not allow them to add any new infrastructure which would be a separate agreement if needed. 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. Vance Kemler, General Manager of Solid Waste and Recycling Services, presented details of the proposal. His discussion included the motivation for landfill mining for protection of water resources, recovery of resources, extending the landfill's useful life, recycling the use of the land and protecting the global climate. Financial considerations, the technical requirements, mining City of Denton City Council Minutes November 17, 2015 Page 2 projects in the United States, and the alignment of the project with the Strategic Plan were reviewed. Council Member Briggs asked about the estimated time for the 30 acres. Kemler stated that it should be no more than 5 -10 years. Council Member Hawkins asked about the number of employees and new equipment needed. Kemler stated that there would be about 8 -12 people and about 10 -12 pieces of equipment. Mayor Pro Tem Gregory asked if this would add to the odor of the landfill. Kemler stated that odor was one of the primary issues looked at in this operation. It would not be as bad as in some of the areas of the landfill as the equipment would help keep the odor on site. 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. Phil Williams, General Manager -DME, presented background on the possible solution of a Gas Insulated Substation in the Eagle Substation area. The reasons for considering such technology were reviewed, areas for consideration to use the technology, key differences of GIS versus air insulated substations, differences in costs of the two types of substations, and presented photo simulations of the two types of substations. He also presented information concerning performance /reliability and operations /maintenance. Council discussion included costs for these types of substations, personnel needed, cost differences, size of footprints of the two types of substations, costs that were not included for the aesthetics for the development of the site, and consideration of the end users of these two substations in term reliability. Williams stated that there were still three options for the Eagle Substation. Staff was recommending an Air Insulated Substation on the Green Site. 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. Council Member Johnson left the meeting during the discussion of Work Session Item C. Council Member Wazny stated that there was a citizen who would like to speak on this issue and requested Council allow her to address the Council. Consensus of the Council was to allow the speaker to make her presentation. City of Denton City Council Minutes November 17, 2015 Page 3 Elma Walker stated that she was opposed to the proposal of a Buc -ee's in the location due to noise, congestion, and pollution. Aimee Bissett, Director of Development Services, reviewed the Buc -ee's Travel Center Proposed Development details. The presentation included the proposed location, current zoning, future land use map, overlay conditions, amenities of the land features, green space and landscaping requirements, access improvements, neighborhood meeting results, incentives. Samples of what other cities had done for the developer and the current incentive proposal were reviewed. Council discussion included setback requirements, reasons why gas pumps were in the back of the property, lighting features, whether the pond qualified for storm water retention, whether current zoning would allow the travel center or a truck stop without the overlay considerations, traffic considerations, and the requested sign variance. Beaver Aplin, President of Buc -ee's, felt that they had gone to great lengths to provide an aesthetically pleasing commercial development on the commercially zoned property. Council discussion continued with types of customers that would use the facility, fuel costs, creation of new jobs, and energy efficiency on the sites, Council Member Johnson returned to the meeting following the completion of the discussion of Work Session C. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: A. ID 15 -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 City of Denton City Council Minutes November 17, 2015 Page 4 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 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 City of Denton City Council Minutes November 17, 2015 Page 5 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. Following the completion of the Closed Meeting, a quorum of the City Council convened in an Open Meeting in the City Council Chambers. Council Member Roden, District 1, participated 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. 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 -1085 Presentation of the National Procurement Institute 2015 Achievement of Excellence in Procurement Award to the City of Denton Materials Management staff. Mayor Watts presented the National Procurement Institute 2015 Achievement of Excellence in Procurement Award to the City's 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. Ms. Jones was not present at the meeting. 2. ID 15 -1118 Christopher Klabunde regarding Johnson's Backyard Garden Workshare Program and farm update. Mr. Klabunde presented a fall harvest update for Johnson's Backyard Garden. He felt the urban environment could intersect with farming. The farm produced over 60 varieties of vegetables. They had a work share program and provided food for up to 250 families in the Metroplex area. He felt that the farm was an asset to the City and should be encouraged. 3. ID 15 -1119 Ryan Crocker regarding farming the City parks - urban farming in Denton. City of Denton City Council Minutes November 17, 2015 Page 6 Mr. Crocker pointed out that urban farming was part of the 2030 plan. He stated that he had an idea about expanding the farming program to farming in the parks. Each neighborhood could have the opportunity to have farming if they had access to the parks. 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. Ken Gold urged the Council to slow down on the gas fired generators in order to find out more information and requested a public hearing to hear from the citizens. 2. Misty Gold also urged the Council to find out more information regarding a gas generators and encouraged a public hearing on the issue. Elida Tamez spoke regarding the City's proposed renewal energy program and urged a public hearing for citizens to express views on the proposal. 4. Ed Soph spoke regarding the lack of public discourse regarding DME's proposed renewal energy program and was concerned about the economic risks of gas fired generators, air emissions and federal mandates in the future. 4. CONSENT AGENDA Council Member Hawkins motioned, Mayor Pro Tem Gregory seconded to adopt the Consent Agenda and accompanying ordinances and resolutions with the exception of Items C, D and EE. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", Council Member Wazny "aye ", and Mayor Watts. Motion carried unanimously. Ordinance No. 2015 -334 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 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). Resolution No. R2015 -038 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. Ordinance No. 2015 -337 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 City of Denton City Council Minutes November 17, 2015 Page 7 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. Ordinance No. 2015 -338 F. ID 15 -1081 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) Ordinance No. 2015 -339 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) Ordinance No. 2015 -340 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) Ordinance No. 2015 -341 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) Ordinance No. 2015 -342 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) Ordinance No. 2015 -343 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) City of Denton City Council Minutes November 17, 2015 Page 8 Ordinance No. 2015 -344 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) Ordinance No. 2015 -345 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 (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) Ordinance No. 2015 -346 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) Ordinance No. 2015 -347 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) Ordinance No. 2015 -348 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) Ordinance No. 2015 -349 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) Ordinance No. 2015 -350 R. ID 15 -1098 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 City of Denton City Council Minutes November 17, 2015 Page 9 providing an effective date. ($52,747 - Hotel Occupancy Tax Committee recommends approval 3 -0) Ordinance No. 2015 -351 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) Ordinance No. 2015 -352 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 (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) Resolution No. R2015 -039 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. Ordinance No. 2015 -353 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). Approved the minutes listed below. W. ID 15 -1149 Consider approval of the minutes of September 1, September 15, October 5, October 6, October 13, and October 20, 2015. City of Denton City Council Minutes November 17, 2015 Page 10 Ordinance No. 2015 -354 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 the City of Denton Street Department; and providing an effective date (File 5981- awarded to Holt CAT in the amount of $435,717.29). Ordinance No. 2015 -355 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). Ordinance No. 2015 -356 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). Ordinance No. 2015 -357 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). Ordinance No. 2015 -358 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 recommends approval (6 -0). Ordinance No. 2015 -359 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; City of Denton City Council Minutes November 17, 2015 Page 11 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). Ordinance No. 2015 -360 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). Ordinance No. 2015 -361 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). Ordinance No. 2015 -362 GG. ID 15 -1163 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). Ordinance No. 2015 -363 HH. ID 15 -1169 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). Ordinance No. 2015 -364 IL ID 15 -1170 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). City of Denton City Council Minutes November 17, 2015 Page 12 Ordinance No. 2015 -365 JJ. ID 15 -1215 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. Council considered Item C. Ordinance No. 2015 -335 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. Mayor Watts indicated that Item C and D would be discussed together. Lt. David Mays, Denton Police Department, presented information on the items. He noted that these two items were the culmination of a lot of citizen input. He presented the background information on the proposal and reviewed the allowable state fees and other fees allowed by Texas Division of License Regulations. A Task Force was formed to study and recommend the fees for towing plus developed a Towing Bill of Rights. Pat Smith spoke in favor of the proposal. Mayor Pro Tem Gregory 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. Ordinance No. 2015 -336 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. This item was discussed with Item C. Mayor Pro Tem Gregory motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. City of Denton City Council Minutes November 17, 2015 Page 13 Resolution No. R2015 -040 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). Mark Nelson, Director of Transportation, stated that the resolution was in support of the planned widening of FM 426 as soon as possible by the Texas Department of Transportation. The Mobility Committee had recommended approval. Council Member Briggs motioned, Mayor Pro Tem Gregory 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. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Resolution No. R2015 -040 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. Mark Nelson, Director of Transportation, stated that this resolution would establish an ad hoc committee to assist with the planning of the Community Event Center on Exposition. The resolution created a three member committee until 2018 or until the Center was designed. Mayor Pro Tem Gregory, Council Member Johnson and Council Member Roden had requested to serve on the Committee. Council Member Johnson motioned, Mayor Pro Tem Gregory seconded to approve the resolution. On roll call vote, 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. 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. Jennifer Walters, City Secretary, presented the vacancies for consideration. She noted that Mayor Watts had nominated Frances Punch to the Parks, Recreation and Beautification Board; Council Member Hawkins had nominated Jim Owen to the Traffic Safety Commission; and Mayor Pro Tem Gregory, Council Member Johnson and Council Member Roden would serve on the Community Event Center Committee. Council Member Hawkins motioned, Mayor Pro Tem Gregory seconded to approve the nominations. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", City of Denton City Council Minutes November 17, 2015 Page 14 Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. 6. PUBLIC HEARINGS Ordinance No. 2015 -366 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). The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, presented the background information on the proposal. This was a rezoning for Toyota of Denton. She reviewed the location map, background information on PD -12, and the concept plan amendments in 1986 and 1987. A Detailed Plan had been approved in 2001 and 2004 for Honda of Denton. The zoning map, future land use, and consideration for approval criteria were presented. The Planning and Zoning Commission and staff recommended approval. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -367 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). The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, presented details on the location map, site data, current and proposed zoning map, concept plan, and considerations for approval. The Planning and Zoning Commission and staff recommended approval. City of Denton City Council Minutes November 17, 2015 Page 15 Justin Bono, applicant, indicated that he was available to answer questions. The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Johnson seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -368 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). The Mayor opened the public hearing. Jim Mays, Superintendent of Parks and Construction, stated the project was for a drainage outflow from a neighboring development that would provide a detention pond outfall for the project. A public hearing was required due to Texas Parks and Wildlife regulations whenever parkland was going to be used for something other than a park. Bill Haney, applicant, spoke in favor and noted that the channel would be earthen. The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Ordinance No. 2015 -369 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). The Mayor opened the public nearing. Aimee Bissett, Director of Development Services, presented the background information for the site for a rezoning from RCC -N to ED -C. She noted that the Denton Plan 2030 encouraged City of Denton City Council Minutes November 17, 2015 Page 16 Business Innovation in this area. The future land use, comparison of RCC -N versus EC -C uses, and considerations for approval were reviewed. The Planning and Zoning Commission and staff recommended approval. Jeremy Reece, applicant, stated that he was available to answer questions. The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Briggs 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. 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 approximately 1.3 acres, generally located south of Smith Street, east of Dallas Drive, and north of Teasley Lane; and providing an effective date. The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, stated that this was a consideration of revoking a specific use permit dated August 5, 2014 allowing a wrecker service and impound lot. She reviewed the SUP conditions and the timeline regarding the property. The considerations for revoking the SUP were presented. Staff was recommending approval of the ordinance revoking the Specific Use Permit. The following individuals spoke during the public hearing: Greg Edwards - spoke in opposition Mayor Pro Tem Gregory questioned how long it would take to come up with a plan to handle runoff for less than 2 acres. Edwards stated that they got involved in the middle of October of this year and had been working on it for about 3 weeks. Mayor Pro Tem Gregory stated that all those other months no one was working on plan. Council Member Hawkins questioned why Condition 43 regarding the fence was not done. Edwards stated he was not sure. The last he had heard was that a plan had been submitted for the buffer. Council Member Hawkins stated that last time this was before Council they had gone to bat for the business but nothing seemed to have been done. City of Denton City Council Minutes November 17, 2015 Page 17 Gloria Akers, 715 Dallas Drive, Denton, 76205 — spoke in support. She detailed information concerning the fence and fence permit and associated problem in obtaining the permit. Council Member Johnson stated that prior Council discussion had lot of debate on whether to give additional time to get the items completed and had specifically asked if the Akers were willing to do the items. It was over a year later and nothing had been done. Council discussed the problems with no action being taken to date on the items that were required, concerns about pollutants going into the stream, and the delay in erecting a fence. Ida Martinez, 9830 Angel Bend, Denton, 76208 — spoke in support and presented information concerning the time lapse in completing the requirements. Greg Edwards spoke again indicating problems with the process, staff and conflicting information. Joe Akers, 9830 Angel Bend, Denton, 76208 - spoke in support Council expressed concern that last year specific items had to be done to the property in order to continue business which had been agreed to by the Akers but the items had not been completed. The stream by the property was still being polluted from runoff from the property. Mr. Akers pointed out that there was a sewer pipe and drainage from the nearby paint store as well. Council requested Ken Banks, Environmental Services and Sustainability Director, to present information on the water testing in the area. Banks displayed a sampling summary for the property and the procedures done for the testing. He noted that this testing was done in response to the ordinance for the continuation of the SUP but that other monthly testing was done throughout the city. Council discussed with Banks the type of pollutant abatement that was necessary on the site The Mayor closed the public hearing. City Attorney Burgess noted that the action of Council in 2014 included a condition that the owner was not required to implement Best Management Practices but directed staff to implement a monitoring program. Mayor Pro Tem Gregory motioned to approve the ordinance to revoke the specific use permit. Possible terms and conditions for extending the specific use permit were discussed by Council with questions on the process if the permit were revoked and reapplication procedures. City Attorney Burgess indicated that it appeared that if the permit were revoked, the business would no longer operate. However, she would like to research that more. The Council had full range of powers and latitude to do less than that if desired. City of Denton City Council Minutes November 17, 2015 Page 18 Council Member Johnson offered a friendly amendment to the motion that in ten days of this meeting, the fence would be built, compost berms to the satisfaction of Dr. Banks would be installed and there would be no other code violations on property at that time. Community Improvement Services would do inspections with no violations. If not, the specific use permit would be revoked. Council considered the friendly amendment in terms of whether ten days was enough time or if that was a set up for failure. Concern was also expressed regarding the integrity of the specific use permit process and the opportunity for prolonged violations. Following Council discussion Council Member Johnson withdrew his amendment and seconded Mayor Pro Tem Gregory's motion to approve the ordinance to revoke the specific use permit. The unknown of when and /or if the business could reapply for a new specific use permit was considered by Council. City Attorney Burgess noted that the situation would have to be researched as this would be a revocation and not a denial. Several different versions for amendments were offered in terms of not having a waiting period for resubmitting an application for a permit once all conditions were met. City Attorney Burgess stated that she had a hesitation to put in that type of condition as they needed to research if that could conflict with State law. She offered another possibility of continuing the case to a date certain to give the applicants time to complete the conditions and if at that date certain, the conditions had not been met, the specific use permit would be revoked at that time. Mayor Pro Tem Gregory stated that he was not inclined to change his motion but felt that a motion to postpone action to a date certain to the December 15th meeting or the first meeting in January might be appropriate due to the uncertainty about whether the reapplication time period would be against state regulations. Council Member Johnson motioned, Council Member Hawkins seconded to postpone the item to a date certain that being December 15th. By that date all items noted in the conditions in the original Council action granting the specific use permit dated August 5, 2014 would be completed. There would not be another public hearing on the issue. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins it Council Member Briggs "aye ", and Council Member Wazny "aye ". Mayor Pro Tem Gregory "nay ". Motion carried unanimously. Mayor Watts asked for an Informal Staff Report on the impact of revocation and reapplication. 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 -1107 Willie Hudspeth regarding City Hall. City of Denton City Council Minutes November 17, 2015 Page 19 Mr. Hudspeth was not present at the meeting. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda Council Member Wazny requested a Work Session on the process and feasibility of hiring an energy analyst consulting firm regarding the two new proposed power plants, including the option of selling the coal plant and options for electricity movement in historic neighborhoods to work on neighborhood code. Council Member Wazny requested a work session to create a citizen task force to work on code along with the Historic Preservation Office. Council Member Wazny requested a Work Session with Planning regarding Planning's notification system of residents of development projects. Mayor Pro Tem Gregory requested a Work Session for the Ethics Committee report on a proposed ethics resolution/ordinance. Council Member Johnson also requested a Work Session on an ethics ordinance for the full Council to weigh in on before doing lots of staff work. Council Member Johnson suggested postponing a Work Session at this time regarding historic preservation issues until the new Historic Preservation Officer was hired. Council Member Johnson requested a briefing about the group promoting anarchy in the City. Council Member Roden requested a Work Session on fiber access in Denton as it was crucial in Downtown plus beyond the Downtown area. Council Member Hawkins requested an Informal Staff Report regarding the top 15 questions received recently by the City and who those questioned were directed to. City of Denton City Council Minutes November 17, 2015 Page 20 Mayor Watts requested a Work Session regarding the economic development fund for Downtown and possible policy changes to expand it to other parts of the City. Mayor Watts requested an Informal Staff report regarding the volume and kind of police calls from single room occupancy apartments compared to the rest of 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 10:28 p.m. MAYOR 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 DENT' IN Legislation Text File #: ID 16 -115, Version: 1 Agenda Information Sheet DEPARTMENT: Fire CM/ ACM: John Cabrales, Jr. Date: February 2, 2016 SUBJECT Consider adoption of an ordinance adopting the Denton County, Texas Hazard Mitigation Action Plan (HazMAP), of which the City of Denton is a party, and providing for an effective date. BACKGROUND The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 93 -288), as amended by the Disaster Mitigation Act of 2000, provides the legal basis for State, local, and Indian tribal governments to undertake a risk -based approach to reducing risks from natural hazards through mitigation planning. The requirements and procedures for State, Local, and Indian Tribal Mitigation Plans are found in the Code of Federal Regulations (CFR) at Title 44, Chapter 1, Part 201. Mitigation planning is a process through which communities assess risks and identify actions to reduce vulnerability to hazards through hazard mitigation. A Mitigation Plan is a living document that communities use to reduce their vulnerability to hazards. Communities must have a plan to apply for or receive federal mitigation grants. These grants can augment local mitigation activities already being implemented in the community. As a participatory jurisdiction with the Denton County HazMAP, the City of Denton will continue to be included in the North Central Texas (Tornado) Safe Room Rebate Program. This program allows eligible individuals to recoup 50% of allowable installation expenses up to $3,000 maximum. The program is administered through the North Central Texas Council of Governments (NCTCOG). The Denton County HazMAP is divided into six chapters and one appendix: Chapter One: Introduction Chapter Two: Planning Process Chapter Three: Hazard Identification and Risk Assessment Chapter Four: 2011 Plan Action Items Chapter Five: Plan Maintenance Chapter Six: Jurisdictional Annexes City of Denton Page 1 of 3 Printed on 1/27/2016 File #: ID 16 -115, Version: 1 • Appendix A: Planning Process Documentation The Denton County HazMAP was prepared with assistance from the NCTCOG. This revision will replace the previous version with updates and required federal format and content changes. The Federal Emergency Management Agency stipulates that the participating jurisdiction must officially adopt the plan. The new version will remain current for a period of five years. Due to the size of the HazMAP document (listed as Exhibit 2), it is too large to load into Legistar or send by email and has been made available to the City Council in the Dropbox. RECOMMENDATION Local governments are required to develop a hazard mitigation plan as a condition for receiving certain types of non - emergency disaster assistance, including funding for mitigation projects. Staff recommends the approval of the proposed ordinance to continue the aforementioned eligibility for federally funded grants, in addition to hazard mitigation preparedness. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The previous Ordinance 2011 -078 was approved by City Council on May 17, 2011. FISCAL INFORMATION The adoption of this ordinance does not present an expenditure related fiscal impact to the City of Denton. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family - Friendly Community Related Goal: 4.1 Enhance public safety in the community EXHIBITS Exhibit l: Ordinance 2011 -078 Exhibit 2: Denton County Hazard Mitigation Action Plan (via Dropbox) Exhibit 3: TDEM Approval Pending Adoption Notice Letter Exhibit 4: Ordinance Respectfully submitted: Robin Paulsgrove Fire Chief Prepared by: City of Denton Page 2 of 3 Printed on 1/27/2016 File #: ID 16 -115, Version: 1 Michael Penaluna Emergency Management Program Manager City of Denton Page 3 of 3 Printed on 1/27/2016 EXHIBIT 1 sAlegal \our documentslordinances1111hazmap ordinance.doc ORDINANCE NO. 2011 -078 AN ORDINANCE ADOPTING THE DENTON COUNTY LOCAL MITIGATION STRATEGY FOR NATURAL HAZARDS, OF WHICH DENTON COUNTY UNINCORPORATED AND THE CITIES OF CORINTH, DENTON, LEWISVILLE, AND THE COLONY ARE PARTIES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, with the assistance from the North Central Texas Council of Governments, has gathered information and prepared the Denton County Local Mitigation Strategy; and WHEREAS, the Plan has been prepared in accordance with FEMA requirements at 44 C.F.R. 201.6; and WHEREAS, the City of Denton, Texas, is a local unit of government that has afforded the citizens an opportunity to comment and provide input in the Plan and the actions in the Plan; and WHEREAS, the City of Denton, Texas, has reviewed the Plan and affirms that the Plan will be updated in accordance to the Plan maintenance process described; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City of Denton, Texas, adopts the Denton County Local Mitigation Strategy as this jurisdiction's Multi - Natural Hazard Mitigation Plan. SECTION 2. The City Council hereby authorizes the City Manager to expend available funds in the manner and amount specified in the Plan and to take any other actions necessary to complete the City's obligations under the Plan and resolves to execute the actions in the Plan. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPR VED PS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ,h EXHIBIT 3 TEXAS DEPARTMENT OF PUBLIC SAFETY 5805 N LAMAR BLVD • BOX 4087 • AUSTIN, TEXAS 78773 -0001 of Pose 5121424 -2000 ArF O� Q E, x www.dps.texas.gov '8 V i STEVEN C. McCRAW COMMISSION DIRECTOR A. CYNTHIA LEON, CHAIR DAVID G. BAKER MANNY FLORES ROBERT J. BODISCH, SR. FAITH JOHNSON DEPUTY DIRECTORS STEVEN P. MACH RANDY WATSON January 4, 2016 The Honorable Mary Horn Denton County Judge 110 West Hickory Street 2nd Floor Denton, TX 76201 -4168 RE: Approvable Pending Adoption of the County of Denton Local Mitigation Plan Dear Judge Horn, Congratulations! FEMA has concluded the review of the Denton County, Texas, local mitigation action plan, and the plan is found to be approvable pending adoption. In order for this plan to receive final FEMA approval, the jurisdiction(s) must adopt this plan and submit the complete adoption package to the state within 90 days. The plan update timeline will begin on the date of the FEMA approval letter. Please mail us the complete adoption package in the form of a CD containing the following: • The final plan formatted as a single document - Plan must be dated to match the date of the first adoption - Remove track changes, strikethroughs and highlights • All signed resolutions as a separate single document The previous review tool may contain recommendations to be applied to your next update. DO NOT make any further changes to your plan until it has been approved. The following participating governments are included in Attachment A. If you have any questions concerning this procedure, please do not hesitate to contact me at Mitchell. Osbum&dps.texas.gov or 512- 337 -0043. We commend you for your commitment to mitigation. Respectfully, Mitchell A. Osburn Mitigation Plans Administrator Texas Division of Emergency Management Texas Homeland Security Texas Department of Public Safety Enclosures: Attachment A EQUAL OPPORTUNITY EMPLOYER COURTESY • SERVICE • PROTECTION Attachment A Denton County, Texas Multi - Jurisdictional Hazard Mitigation Plan Participants Below is the list of participating governments included in the December 1, 2015 review of the referenced Hazard Mitigation plan: 1. Denton County 2. Town of Argyle 3. City of Aubrey 4. City of Corinth 5. Town of Cross Roads 6. City of Denton 7. Town of Double Oak 8. Town of Flower Mound 9. Town of Hickory Creek 10. City of Highland Village 11. City of Justin 12. City of Krugerville 13. City of Krum 14. City of Lake Dallas 15. City of Lewisville 16. Town of Little Elm 17. City of Pilot Point 18. Town of Ponder 19. City of Roanoke 20. City of Sanger 21. Town of Shady Shores 22. City of The Colony MO /kg EQUAL OPPORTUNITY EMPLOYER COURTESY • SERVICE • PROTECTION EXHIBIT 4 ORDINANCE NO. AN ORDINANCE ADOPTING THE DENTON COUNTY, TEXAS HAZARD MITIGATION ACTION PLAN OF WHICH THE CITY OF DENTON IS A PARTY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, recognizes the threat that natural hazards pose to the people and property within Denton County; and WHEREAS, the County of Denton has prepared a multi- hazard mitigation plan, hereby known as Denton County Hazard Mitigation Action Plan, January 2016 in accordance with the Disaster Mitigation Act of 2000; and WHEREAS, Denton County Hazard Mitigation Action Plan, January 2016 identifies mitigation goals and actions to reduce or eliminate long -term risk to people and property in the City of Denton, Texas from the impacts of future hazards and disasters; and WHEREAS, adoption by the COUNCIL OF THE CITY OF DENTON demonstrates their commitment to the hazard mitigation and achieving the goals outlined in the Denton County Hazard Mitigation Action Plan, January 2016. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City of Denton, Texas, adopts the Denton County HAZARD MITIGATION ACTION PLAN (HazMAP) as this jurisdiction's Multi- Natural Hazard Mitigation Plan. SECTION 2. The City Council hereby authorizes the City Manager to expend available funds in the manner and amount specified in the Plan and to take any other actions necessary to complete the City's obligations under the Plan and resolves to execute the actions in the Plan. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r BY:, City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -118, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $5,700 of in -kind services and resources for the 31st Annual Texas Storytelling Festival to be held in the Civic Center located at 321 E. McKinney Street from March 10 -13, 2016; and providing an effective date. BACKGROUND The City Council approved $3,700 of in -kind services and resources in 2015. This included Police overtime and the waiving of one -half of the Civic Center rental fee. The actual cost of the City's sponsorship was $5,803. The overage was a result of extra Police Department hours required to keep an officer in the Civic Center parking lot to preserve parking for the Storytelling Festival. This was necessary due to the festival and 35 Denton occurring on the same weekend. The Texas Storytelling Festival is organized by the Tejas Storytelling Association and other various volunteers. The 2015 attendance was approximately 400 -500. PRIOR ACTION/REVIEW The City Council authorized an agreement for the City's sponsorship of the Annual Texas Storytelling Festival on March 12 -15, 2015, under Ordinance 2014 -411, in the amount of $3,700. This is the third time the Texas Storytelling is being presented to Council for approval. FISCAL INFORMATION The Festival received Hotel/Motel Occupancy Tax (HOT) funds in the amount of $52,747 to promote their event for 2016. The actual 2015 cost of in -kind services was $5,803; the total cost for sponsorship, including HOT funds, was $58,550. The City is recognized as a sponsor at a level equal to this value. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: City of Denton Page 1 of 2 Printed on 1/28/2016 File #: ID 16 -118, Version: 1 Related Key Focus Area: Safe, Liveable & Family - Friendly Community Related Goal: Provide and support outstanding leisure, cultural, and educational opportunities. EXHIBITS 1. Letter of Request 2. 2015 Proposed Costs versus Actual Costs 3. Running Total of Requested Support 4. Proposed Ordinance Respectfully submitted: Vorel, Director Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator Emerson City of Denton Page 2 of 2 Printed on 1/28/2016 004or 19,200 JL Ci ty, Gountfl, Ci%fy u1'Di_mLon,,'fX "I RjL,,: 3111 Annual Ti as Staryte.] Ling Festival EWA I For thirty years, the Dente,)n community 11as been hame t!o thc'Tcx2sStv.')rytcffing Festival. On the weekend of Mxrd,,il 0-13,20-16, the7elas SmryteHMg Apwchdnn W hMd its 31-10mW W a `110U'Pe, 1),)1W r Uf De'oton� Vh'e'frlxluo bers�hi 0, ainn41 vo) w7tet" rBoord of i h,o 1),wJwei Suwyt irtg, WVC b"AMM lolkrUlidnj; hand Whand with represc ntu.Uvc-s ol'the CIvIc Center, thu Parks and Rccreatkin Depanmment, the Em Hy Faw cr Lilbrarj, this D-entun, Woman's (Jul and a wade, at Denwn-prase d husines,w..s to makenur 31 st Fesdv:0 the most exc tjng� hesaattendad festival yiat! T,Oas Stcrytcd ling Assuiciadext n'_�qucsts that the C"itly (if Denton name the T,?,:xa s Storyte I ling Festiva I a ro-sponsared event. As a ansponsored event, the f5esuval,will be given a: fflsrnunrPd renta I rate fn,i ne Chk CmAer as %weLl as discounted poi[ce nverd rne cnsu; for the festival searri ty. Tejas Starytelling Ass4idafian vAl I cantinue to suppart ou r to n - st °arrdhi a granraaa ent to pnnv de teders throughout the year IS inwinus acthities fqxntrxPred E-wy DFsann Pa"rk-5 xnd flea i�aocnk. Th -s,^ jworessfbna l I r-Rers, pi,o,vide f h,6 r, sei,"" iw""e p ro".) 41, Order to toff o tire c uF the cu sponsu rship, Taps Swrp= ng Assr5od on as IN W4 'du com bhw= of gr'u rrts, iruna. rr6e r-.4a up then and dunmWns. 11"iv Grua Lcr Denton Ans CuundL The QrUon Bancht Leagua the CQ of Dentan, Wtan Parks and Rfxrcativn, a rid th.cTexas Cumanisspon un the Arrs ha%rq_- tTad�itionall[,yspunsoradthAnTcxas 'Sturyteiling Festival The 'rejas Star -d and the mmmbonlYip thFy reprpz, ent yteffingAssoclation Bom appredate the angping support oxf, theye entihesL Ymm unWm=g allavvs us w make the PsUval weekend available to participants hir very InmW ,,inklia�,;,Itq prkv . A(1di4*)in,,a,,l1y, tbic,i-v a resevera I eve nts, mrMgNul Me fes't iv')"l w uffered n,, u thfc, pu Wit, friccof chargc-. Festi van; 5 ru.n t rli vc'rrsc in age and baickgruund, ftum oUT Y0UngCSt listene ns who partidpate [n the specialk!'ds activitlin"'Un Sawrxi-ay tun , WilChers, kbrarians, couriscLars, ministers, attorneys, picriurming arthits, and all hdks who R)vc a good stray. We rni-ake a Apr dire effcwl tri rNi';b cqr to tht, hearing, irnpairedcamm unity by providing A;L siginers f"ar our r.nno(N,ts. V n tl1,xe� p.rtmtt YW T , slnv.cd L12C tcstival with the NCH-th Toms Kadin Am-Me Blind,_ The Texis RoUWWng Festival not nn[Ty atmacts trn:r -dew I it RLSo z"AtrUCIS ffilm' acra . to llmytlo,n Ht)o,,L®l rjucupancy'rax are ab]ic tar market runs a° "'I 1=400041 and. cach year %we fill our mserved block at a Denton, howl'. We appTudate the suppurt given by lac. City of Dantcm, its business ownemwid t1w., cxwranuni y a"S N%,c'vo'uHk, uu fmiter to providu a unique festival experience, the stu ff of whTxh wiH [,wa. WAR Al NO noW ng Wdur 1'c-yas SLoryVAlirag Festival 210 16 t0,z,s.5tor1es2teH,@p C) �J 2 11 4 9 1 Texas Storytelling Festival In -Kind Contributions Exhibit 2 2015 Proposed Costs City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees HOT Funds Total In- Kind Costs PARR Staff $ 275 $ 275 Park Fees City Facilities $ 2,360 $ 2,360 Equipment and Supplies Parks and Recreation $ 275 $ 2,360 $ 2,635 Police $ 1,000 $ 1,000 Total n- n s Services $ 275 $ 3,360 $ 3,635 HOT Funds $ 52,747 $ 52,747 Total $ 275 $ 3,360 $ 52,747 $ 56,382 2015 Actual Costs City In -Kind Contribution Personnel Reg. Time Personnel OT Equipment & Supplies Waived Fees HOT Funds Total In- Kind Costs PARD Staff $ 275 $ 275 Park Fees City Facilities $ 2,360 $ 2,360 Equipment and Supplies Parks and Recreation $ 275 $ 2,360 $ 2,635 Police $ 3,168 $ 3,168 Total In -Kind Services $ 275 $ 5,528 $ 5,803 HOT Funds $ 52,747 $ 52,747 Total $ 275 $ - $ - $ 5,528 $ 52,747 $ 58,550 M >C W O V1 'C i O O A N W a3 U N O N cc3 N cC3 U U 69 bR r 69 69 bR ccf O H O ban ban p U � U U" ban ban � O N 69 69 b��4 b��4 a� w � ti � O w U Ncc3 ban ban ccf � th 00 9F O O 00 O 00 bA 69 69 O OMO 'r N kn r M m 69 O bA ~ 69 F!4 a c-1 N M Ln l0 I" w m c-I S:ALegal \Our Documents \0rdinances \l6\Texas Storytelling Festival Sponsorship.doex Exhibit 4 ORDINANCE NO. AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $5,700.00 OF IN -KIND SERVICES AND RESOURCES FOR THE 31ST ANNUAL TEXAS STORYTELLING FESTIVAL TO BE HELD 1N THE CIVIC CENTER LOCATED AT 321 E. MCKINNEY STREET BEGINNING MARCH 10 -13; 2016 AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Texas Storytelling Festival is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in the Civic Center March 10 -13, 2016; and WHEREAS, the City of Denton has sponsored up to $5,700.00 of in -kind services and resources for the event which included police overtime and waiving one -half of the Civic Center rental fee; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in -kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $5,700.00 of in -kind services for the event to be held in the Civic Center March 10 -13, 2016; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to pmiicipate as a sponsor at a level not to exceed $3,700.00 of in- kind services and resources, including but not limited to police ove l lime and one -half of the Civic Center rental fee, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I:ii S:ALegai \Our Documents \Ordinances \16 \Texas Storytelling Festival Sponsorship.docx APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:� '% Exhibit 4 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -122, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance approving a contract for a three (3) year comprehensive service plan for maintenance and tuning of the City of Denton Municipal Laboratory Perkin Elmer Inductively Coupled Plasma Mass Spectrometer which is available from only one source and in accordance with Texas Local Government Code 252.022, such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 6047- awarded to PerkinElmer Health Sciences, Inc. in the three (3) year not -to- exceed amount of $87,937.30). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION The Municipal Laboratory has owned and operated a Perkin -Elmer ELAN9000 Inductively Coupled Plasma Mass Spectrometer (ICP -MS) since its purchase in 2004. This instrument is used by the lab to obtain metals results reported to and utilized by City departments in fulfillment of their permit requirements as mandated by State and Federal environmental law. The highly technical nature of the ELAN9000 makes it unfeasible for laboratory personnel to perform routine maintenance and conduct repairs as needed on the instrument. Long term savings can also be obtained by entering into a service contract instead of scheduling and paying for individual service calls. A quote for a three (3) year service plan is attached as Exhibit 1. PerkinElmer Health Sciences, Inc. is the exclusive authorized distributor for the PerkinElmer Inductively Coupled Plasma Mass Spectrometer including maintenance and parts (Exhibit 2). Therefore, staff is recommending PerkinElmer Health Sciences, Inc. as the sole source provider of this product (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. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 25, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve the purchase of a three (3) year comprehensive service plan for maintenance and tuning of the City of Denton Municipal Laboratory Perkin Elmer Inductively Coupled Plasma Mass Spectrometer from PerkinElmer City of Denton Page 1 of 2 Printed on 1/28/2016 File #: ID 16 -122, Version: 1 Health Sciences, Inc. in the three (3) year not -to- exceed amount of $87,937.30. PRINCIPAL PLACE OF BUSINESS PerkinElmer Health Sciences, Inc. Shelton, CT ESTIMATED SCHEDULE OF PROJECT This is a three (3) year maintenance contract which will expire on January 31, 2019. FISCAL INFORMATION The services performed under this contract will be funded from the Wastewater Operating Fund account 640500.6506. Requisition 4127268 has been entered for the first year maintenance. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 2.3 Promote superior utility services and facilities EXHIBITS Exhibit l: Quote Exhibit 2: Vendor Sole Source Letter Exhibit 3: Staff Sole Source Memo Exhibit 4: Public Utilities Board Draft Minutes Exhibit 5: Ordinance Exhibit 6: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Fritz Schwalm at 349 -8615. City of Denton Page 2 of 2 Printed on 1/28/2016 ONESOURCE LABORATORY SERVICES Per kin E P„ m .r r �,,,. PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Invoicing Address (if different) Quotation Date 40562254 SCHWALM, FRITZ 10/22/2015 Your Prior Agreement 215 E MCKINNEY ST Quote Expiration Date 35388499 DENTON TX 76208 02/11/2016 Customer Contact Your Prior PO Number 171288 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Page Number 1 of 6 CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA Serial Number (P1500311) Site Number Customer Number 100021902 4007095 Payment Terms Net 30 days Coverage Period Billing Plan 02/02/2016 to 01/31/2019 Yearly Page Number 1 of 6 Line Quantity Model Description List Price Net Price 10 1 ELAN9000 ELAN9000 ** 23,418.77 23,418.77 02/02/2016 to 01/31/2017 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 20 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 706.03 706.03 02/02/2016 to 01/31/2017 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 30 1 AS93PLUS AS93PLUS 3,386.57 3,386.57 02/02/2016 to 01/31/2017 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 40 1 MASSOFTWARE MAS SOFTWARE 885.53 02/02/2016 to 01/31/2017 Serial Number (P1500311) Repair Coverage Plan (Parts, Labor, Travel & Phone Support) Sub total for YEAR 1 50 1 ELAN9000 ELAN9000 ** 24,188.52 02/01/2017 to 01 /31/2018 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 885.53 28,396.90 24,188.52 ONESOURCE LABORATORY SERVICES Per kin E P„ m .r r �,,,. PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Invoicing Address (if different) Quotation Date 40562254 SCHWALM, FRITZ 10/22/2015 Your Prior Agreement 215 E MCKINNEY ST Quote Expiration Date 35388499 DENTON TX 76208 02/11/2016 Customer Contact Your Prior PO Number 70 1 AS93PLUS 171288 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Line Quantity Model CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. Site Number Customer Number 100021902 4007095 Payment Terms Net 30 days Coverage Period Billing Plan Page Number 02/02/2016 to 01/31/2019 Yearly 2 of 6 Line Quantity Model Description List Price Net Price 60 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 729.24 729.24 02/01/2017 to 01 /31/2018 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 70 1 AS93PLUS AS93PLUS 3,497.88 3,497.88 02/01/2017 to 01 /31/2018 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 80 1 MASSOFTWARE MAS SOFTWARE 914.64 02/01/2017 to 01 /31/2018 Serial Number (P1500311) Repair Coverage Plan (Parts, Labor, Travel & Phone Support) Sub total for YEAR 2 90 1 ELAN9000 ELAN9000 ** 24,914.16 02/01/2018 to 01/31/2019 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 100 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 751.08 02/01/2018 to 01/31/2019 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 914.64 29,330.28 24,914.16 751.08 ONESOURCE LABORATORY SERVICES Perkin E P„ m .r r ii,,,. PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Quotation Date 40562254 10/22/2015 Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 Customer Contact Telephone Number 940 - 349 -8615 QUOTATION - COMPREHENSIVE Site Address: SCHWALM, FRITZ CITY OF DENTON 1100 MAYH I LL RD DENTON TX 76208 USA Site Number 100021902 Your Prior PO Number 171288 Fax Number SERVICE PLAN 3 YR Invoicing Address (if different) CITY OF DENTON ACCOUNTS PAYABLE 215 E MCKINNEY ST DENTON TX 76201 -4299 USA Customer Number 4007095 Payment Terms Coverage Period Billing Plan Page Number Net 30 days 02/02/2016 to 01/31/2019 Yearly 3 of 6 Line Quantity Model Description List Price Net Price 110 1 AS93PLUS AS93PLUS 3,602.76 02/01/2018 to 01/31/2019 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 120 1 MASSOFTWARE MAS SOFTWARE 02/01/2018 to 01/31/2019 Serial Number (P1500311) Repair Coverage Plan (Parts Sub total for YEAR 3 Labor, Travel & Phone Support) 942.12 3,602.76 942.12 30,210.12 ONESOURCE LABORATORY SERVICES Per kin E P„ m .r r �,,,. PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Invoicing Address (if different) Quotation Date 40562254 SCHWALM, FRITZ 10/22/2015 Your Prior Agreement 215 E MCKINNEY ST Quote Expiration Date 35388499 DENTON TX 76208 02/11/2016 Customer Contact Your Prior PO Number 171288 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA Site Number 100021902 Customer Number 4007095 Payment Terms Coverage Period Billing Plan Page Number Net 30 days 02/02/2016 to 01/31/2019 Yearly 4 of 6 Line Quantity Model Description Net Price Gross Price 87,937.30 Net Price 87,937.30 Note: taxes will be applied to your invoice if applicable EXHIBIT 1 Per kin E rim eii-" PerkinElmer Health Sciences, Inc. - Service Agreement Terms and Conditions 1. TERMS OF AGREEMENT: These Service Agreement Terms and Conditions shall govern all orders for and purchases from PerkinElmer of services under a PerkinElmer Service Plan ( "Services ") and shall prevail over any pre - printed, standard or other terms set forth in Buyer's purchase order or any other document not signed by an authorized representative of PerkinElmer, which are hereby rejected and shall be void. Buyer's submission of a purchase order or other instrument regarding the purchase of Services in response to PerkinElmer's quotation or any other PerkinElmer document that includes or incorporates these terms shall be deemed acceptance of these terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order or other instrument. 2. REASONABLE EFFORTS: PerkinElmer will use reasonable efforts under the circumstances to provide Services as quickly as possible. The Services will be scheduled at a time mutually agreed upon by PerkinElmer and the Buyer. Parts and components replaced or otherwise utilized in the repair of the instrument may be either new or refurbished at the discretion of PerkinElmer. 3. TERM: TERMINATION: PerkinElmer may accept or reject at its discretion a purchase order for Services. Unless otherwise expressly stated by PerkinElmer in writing or under the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by PerkinElmer in its quotation or otherwise specified to Buyer. A Service Plan may be terminated by either party upon at least thirty (30) days written notice to the other party. If Buyer is past due with respect to any invoices related to any account with PerkinElmer, PerkinElmer may, upon written notice to Buyer: suspend Services, demand payment for the balance due under this Agreement, and /or terminate this Agreement. In connection with a termination for convenience by either party, PerkinElmer shall refund Buyer any payments made by Buyer for Services beyond the effective date of termination, subject to a 15% cancellation charge on the total value of the underlying Service Plan. 4. PAYMENT: Payment is due by Buyer upon receipt of invoice. Unless installment payment terms are agreed in writing by PerkinElmer and Supplier, Buyer shall deliver payment in full to the address set forth in PerkinElmer's invoice. Invoices not paid timely are subject to the lesser of fifteen percent (15 %) per annum or the maximum prevailing legal interest rate, calculated from date of delinquency through the date payment is made in full. If PerkinElmer retains a collection agency and /or attorney to collect unpaid amounts, PerkinElmer may invoice Buyer for, and Buyer shall pay, all costs of collection including, without limitation, reasonable attorneys' fees. 5. WARRANTY: LIMITATION OF LIABILITY: PerkinElmer warrants that it will provide Services at least in accordance with generally accepted standards prevailing in the instrument repair industry, at the time and place performed. Warranty claims must be made within 90 days after Services are performed. PERKINELMER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. PERKINELMER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE- PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES, AT PERKINELMER'S OPTION. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL PERKINELMER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE, EVEN IF PERKINELMER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PERKINELMER'S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE SHALL NOT EXCEED, AND BUYER'S EXCLUSIVE REMEDY IN ANY EVENT SHALL BE LIMITED TO, THE AMOUNT ACTUALLY PAID BY BUYER FOR THE UNDERLYING SERVICE PLAN. 6. EXCLUSIONS: Service Plans do not include software or firmware upgrades, except where specifically included in PerkinElmer's quotation, and do not include replacement of parts, costs or repairs for defects or damages arising from or in connection with (a) abuse, misuse, mishandling, improper or inadequate maintenance, or failure to operate equipment in accordance with applicable specifications or instructions; (b) causes beyond PerkinElmer's reasonable control, including, without limitation, acts of God, power surges or failure, failure or interruption in communication lines, or corrosive Buyer samples; (c) installation of software or interfacing, or use in combination with software or products, not supplied or authorized by PerkinElmer; or (d) electrical work, transportation, modification, relocation, deinstallation, reinstallation, repair or service, performed by Buyer or by persons other than PerkinElmer authorized personnel. Further, parts in contact with any liquid, including but not limited to, seals, filters, gaskets, valves, syringes, tubing, tips, etc., are considered wetted and shall be deemed user replaceable and not covered by any Service Plan, unless otherwise stated in PerkinElmer's quotation. 7. CONSUMABLEs: The cost of consumables supplied by PerkinElmer in performing the Services are the responsibility of Buyer unless otherwise stated in PerkinElmer's quotation. Consumables include PerkinElmer's usual and customary parts, supplies and other items which are expendable by their nature or intended use, and those which are listed in the applicable instrument user's manual. 8. INSTRUMENT RECERTIFICATION: PerkinElmer may require instrument recertification on a time and materials basis as a condition to performing Services if an instrument has not been under warranty or a service plan immediately prior to the time of Services. 9. TRAINING; INSTRUMENT RELOCATION: Service Plans do not include Buyer training or services related to the relocation of instruments unless otherwise specifically stated in writing by PerkinElmer in any particular case. 10.AsSIGNMENT: GOVERNING LAw: Neither this Agreement nor any Service Plan is assignable or otherwise transferable by Buyer. These Service Agreement Terms and Conditions and any underlying Service Plans shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its conflicts of laws rules, and all disputes shall be subject to the exclusive jurisdiction of the courts therein. 11.AMENCMENT: ENTIRE AGREEMENT: No amendment or modification of these terms shall be binding unless in writing and signed by an authorized representative of both PerkinElmer and Buyer. These Service Agreement Terms and Conditions, together with PerkinElmer's quotation regarding the Service Plan(s) or other services subject to these terms and conditions, and PerkinElmer's description of the Services provided under the Service Plan purchased by Buyer, represents the entire agreement between the parties with respect to the subject matter herein. Service v08172010 ONESOURCE LABORATORY SERVICES PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Invoicing Address (if different) Quotation Date 40562254 SCHWALM, FRITZ 10/22/2015 Your Prior Agreement 215 E MCKINNEY ST Quote Expiration Date 35388499 DENTON TX 76208 02/11/2016 Customer Contact Your Prior PO Number 171288 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Telephone: CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA USTX03 Site Number Customer Number 100021902 4007095 Payment Terms Coverage Period Billing Plan Page Number Net 30 days 02/02/2016 to 01/31/2019 Yearly 5 of 6 Billing Plan Planned Invoice Invoice Amount($) Customers can also elect to a either month) quarterly, semi - annual) date(s) pay Y� q Y� Y 02/02/2016 28,478.38 over the entire coverage period, however an administrative 02/02/2017 29,332.73 surcharge will be applied to each invoice. 02/02/2018 30,126.19 Total billed 87,937.30 Billina Plan Invoice freauencv Total invoiced amount Single contract invoice 87,937.30 PerkinElmer Contact information Quoted by: EDWARD EBBERT Telephone: 615- 208 -1790 Fax Number: 203 - 944 -4983 Email: Zone: Zone 1 Region: W Texas /Gulf Svcx Location: USTX03 ■❑ ONESOURCE LABORATORY SERVICES PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue SHELTON CT 06484 -4794 USA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Quotation Number Quotation Date 40562254 10/22/2015 Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 Customer Contact Telephone Number 940 - 349 -8615 QUOTATION - COMPREHENSIVE Site Address: SCHWALM, FRITZ CITY OF DENTON 1100 MAYH I LL RD DENTON TX 76208 USA Site Number 100021902 Your Prior PO Number 171288 Fax Number SERVICE PLAN 3 YR Invoicing Address (if different) CITY OF DENTON ACCOUNTS PAYABLE 215 E MCKINNEY ST DENTON TX 76201 -4299 USA Customer Number 4007095 Payment Terms Coverage Period Billing Plan Net 30 days 02/02/2016 to 01/31/2019 Yearly 6 o Number f 6 Additional Notes: 1. This quotation is subject to the terms and conditions attached and is valid until the expiration date shown above. 2. Customer is responsible for applicable taxes, including sale, use and /or excise tax unless otherwise noted above. 3. If Preventative Maintenance is covered under your agreement, please indicate any special date requirements below. PM #1 PM #2 If any information presented on the document is incorrect e.g Billing address, serial numbers, please indicate the required changes below: PLEASE SIGN THIS MAINTENANCE AGREEMENT QUOTATION AND RETURN ORIGINAL COPY ALONG WITH YOUR PURCHASE ORDER TO: By Mail: By Fax: 203 - 944 -4983 PerkinElmer Health Sciences, Inc. OR 710 Bridgeport Avenue By E -mail: Mail Stop 75 Shelton, CT 06484 -4794 YOUR SIGNATURE BELOW CONFIRMS THAT YOU HAVE READ AND UNDERSTAND THE ABOVE STATEMENTS AND THAT THE INFORMATION INCLUDED THEREIN IS CORRECT TO THE BEST OF YOUR KNOWLEDGE. IN ORDER TO AVOID A LAPSE IN SERVICE COVERAGE, PLEASE FORWARD A PURCHASE ORDER PRIOR TO THE EFFECTIVE START DATE OF THE CONTRACT. Accepted By: Date Signature of Authorized Individual Date Print Name and Title Date Customer Purchase Order Number Date PerkinElmer Representative EXHIBIT 2 > I PerkinElmer For the Beftef January 8, 2016 Attention: Fritz Schwalm Dear Fritz, Please be advised that PerkinlNmer Health Sciences, Inc is the sole source for factory new or factory remaniufaictured parts, local service representation, and factory trained/certified engineers to provide service and installation for all instrumentation manufactured and sold by PerkinElimer, Inc. PerkinElmer does not certify third party technical service nor do we have any dealers, or distributors selling, parts. If you need anything further, please do not hesitate to contact me. Very truly yours,, Kenny Ti &er Service Contract Support Specialist PerkinElmer Health Sciences, Inc - EXHIBIT 3 O DENTON 1114unicipall III alboratory 1100 „ IM y1hiillll R- d., Oeir ton, .TX 76208 (940) 349 86:15 l:::: :ax (940) 349 86.1. January 14, 2016 TO: Rebecca Hunter, Senior Buyer, City of Denton Purchasing FROM: Fritz Schwalm, Manager, City of Denton Municipal Laboratory SUBJECT: Expenditure of budgeted funds for PerkinElmer Service contract Dear Mrs. Hunter, This memo is being provided as documentation requesting that this years' fiscally budgeted funds be spent on our annual Service contract agreement with PerkinElmer. Alexandra Halters, Contract Sales Representative for PerkinElmer (contact information is listed at bottom), has provided a three year contract for their services as well as a sole source letter. Those documents are being submitted to you along with this memo. The PerkinElmer service contract is critical to the success of the Municipal Laboratories role as the support testing lab for the City of Denton's Water Production, Wastewater Reclamation Plant, Industrial Pretreatment Program, Watershed Management, and Beneficiary ReUse Program Divisions. The PE instrument (an ELAN 9000 Inductively Coupled Plasma Mass Spectrometer) is highly sophisticated and used to measure the concentrations of metals in water, wastewater, sludge, and soils. Maintenance and tuning are critical to the instrument's functionality of providing accurate and usable metals results to laboratory customers. The ELAN 9000 requires annual maintenance, tuning, and at times repair which, due to the complex nature of the instrument, is not within the capability of our lab staff. Included in the service contract is the replacement of parts, infrastructure critical to the instruments functionality that, if not under contract, would cost the lab thousands of dollars. In all past years we have found that our service contract with PerkinElmer has paid for itself. Thank you for your consideration and please feel free to contact me for additional information should you wish it. Kind regards, Fritz U. Schwalm Laboratory Manager The City of Denton Municipal Laboratory (940)349-8615 PerkinElmer Contract Sales Representative Alexandra Halters, Alex. Halters @PERKINELMER.COM (615) 523 -5479) "Dedicated to Quality Service" www.cityofdenton.com EXHIBIT 4 DRAFT MINUTES PUBLIC UTILITIES BOARD January 25, 2016 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, January 25, 2016 at 9:02 a.m. in the Service Center Training Room at the Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Barbara Russell, Lilia Bynum, Charles Jackson, Brendan Carroll and Susan Parker Absent: Vice Chair Phil Gallivan Ex Officio Members: George Campbell, City Manager, Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA C. PUB16 -013 Consider recommending adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of a three year service contract from PerkinElmer Health Sciences, Inc. for the maintenance of the Perkin -Elmer ELAN9000 Inductively Coupled Plasma Mass Spectrometer (ICP -MS) being operated by the Municipal Lab. Service on this specialized instrument 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 6047- PerkinElmer Contract the annual estimated amount of $29,500 for a three year total not to exceed $88,016.40). Attachments: Exhibit 1 - Sole Source Letter Exhibit 2 — Quote Board Member Russell asked if we have other equipment by PerkinElmer. Fritz Schwalm, Laboratory Manager, stated we have had this instrument for over ten years and do not have any other PerkinElmer equipment. They do not intend on replacing, it is functioning property. The service contract is critical in the long term it saves money, replacement parts are very expensive. Russell then asked if it has been considered contracting with TWU or UNT about this. In the past they have run samples. Schwalm answered the laboratory maintains their own quality control and assurance program. Our requirements are actionable for our customers. UNT /TWU do not have an Environmentally Certified Lab. Our lab will be certified for metals analysis and can bring in more work to our lab. Draft Minutes of the Public Utilities BoarcVXf i&JT 4 January 25, 2016 Page 2 of 2 Board Member Carroll asked what is the replacement cost. Schwalm answered new it would be $200,000. Longevity is 15 years. Board Member Russell motioned to approve and Board Member Carroll seconded, vote 6 -0 approved. Adjournment 10:38 a.m. EXHIBIT 5 ORDINANCE NO. AN ORDINANCE APPROVING A CONTRACT FOR A THREE (3) YEAR COMPREHENSIVE SERVICE PLAN FOR MAINTENANCE AND TUNING OF THE CITY OF DENTON MUNICIPAL LABORATORY PERKIN ELMER INDUCTIVELY COUPLED PLASMA MASS SPECTROMETER WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE 252.022, SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 6047 - AWARDED TO PERKINELMER HEALTH SCIENCES, INC. IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $87,937.30). 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 6047 PerkinElmer Health Sciences, Inc. $87,937.30 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 6047 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 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND PERKINELMER HEALTH SCIENCES FILE 6047 THIS CONTRACT is made and entered into this date , by and between PerkinElmer Health Sciences, Inc. a corporation, whose address is 710 Bridgeport Avenue, Shelton, CT 06484 - 04794, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," and shall remain 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 Contractor shall provide services in accordance with the Contractor's proposal 40562254, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "D ". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Modified City of Denton Standard Terms and Conditions (Exhibit "A "); (b) Modified Special Terms and Conditions (Exhibit "B "); (c) Insurance Requirements (Exhibit "C "); (d) Contractor's Proposal. (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." File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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: BY: File 46047 CO IW � I y(,� h� BY: AUTHORIZED SIGNATURE 1/27/2016 Date: MaryLynne Hartl Name: Title: Contract Admin 1- 800 - 762 -4000 PHONE NUMBER Contracts perkinelmer.com EMAIL ADDRESS CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 Exhibit A Standard Purchase Terms and Conditions These modified Terms and Conditions are applicable to this Contracts issued by the City hereinafter referred to as the City and the Contractor. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Contractor. No Terms and Conditions contained in the Contractor's Solicitation Response, Invoice or Statement shall serve to modify the terms set forth herein. By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the 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. As specified in the Contract, this Contract shall be effective as of February 2, 2016 the date of the associated Service Plan, and shall continue in effect until January 31, 2019 unless terminated earlier by either party upon thirty (30) days written notice to the other party. 3. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. 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. 4. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the invoice being received in Accounts Payable, whichever is later. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or E. Notice is hereby given that any awarded Contractor who is in arrears to the City for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The 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 prompt 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. 5. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. 6. FINAL PAYMENT AND CLOSE -OUT: NOT APPLICABLE 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 the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 7. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. Any such audit shall be limited in scope to compliance with this Contract and in no event shall it extend to a review of Contractor's costs or expenses of any kind File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 or profits /losses. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract for a period of three (3) 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. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 8. SUBCONTRACTORS: NOT APPLICABLE A. If the Contractor identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the 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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 9. WARRANTY- PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other Contractor or with any competitor. 10. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be 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. Warranty claims must be made within 90 days after Services are performed. CONTRACTOR MAKES NO OTHER WARRANTIES OF ANY HIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. CONTRACTOR'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE- PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES, AT CONTRACTOR'S OPTION. THESE ARE THE CITY'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE, EVEN IF CONTRACTOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, CONTRACTOR'S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE SHALL NOT EXCEED, AND THE CITY'S EXCLUSIVE REMEDY IN ANY EVENT SHALL BE LIMITED TO, THE AMOUNT ACTUALLY PAID BY BUYER FOR THE UNDERLYING SERVICE PLAN. 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 City shall pay to the Contractor, on a prorated basis, the amount owed for services provided to date. EXCLUSIONS: Service Plans do not include software or firmware upgrades, except where specifically included in Contractor's quotation, and do not include replacement of parts, costs or repairs for defects or damages arising from or in connection with (a) abuse, misuse, mishandling, improper or inadequate maintenance, or failure to operate equipment in accordance with applicable specifications or instructions; (b) causes beyond Contractor's reasonable control, including, without limitation, acts of God, power surges or failure, failure or interruption in File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 communication lines, or corrosive City samples; (c) installation of software or interfacing, or use in combination with software or products, not supplied or authorized by Contractor; or (d) electrical work, transportation, modification, relocation, reinstallation, repair or service, performed by the City or by persons other than Contractor authorized personnel. Further, parts in contact with any liquid, including but not limited to, seals, filters, gaskets, valves, syringes, tubing, tips, etc., are considered wetted and shall be deemed user replaceable and not covered by any Service Plan, unless otherwise stated in Contractor's quotation. CONSUMABLES: The costs of consumables supplied by Contractor in performing the Services are the responsibility of the City unless otherwise stated in Contractor's quotation. Consumables include Contractor's usual and customary parts, supplies and other items which are expendable by their nature or intended use, and those which are listed in the applicable instrument user's manual. 12. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 13. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. 14. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 15. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by providing thirty (30) days written notice unless the Contractor, within such thirty (30) 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. 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. 16. TERMINATION WITHOUT CAUSE: Either party 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. The City shall pay the Contractor for all services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 17. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 18. DELAYS: A. The City may delay scheduled Service 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 Service 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 fifteen (15) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 19. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including reasonable attorney 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 /or (2) death, bodily injury, illness, or disease to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors), ii. "Fault" shall include the negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, PERMITTED ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY 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. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 20. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in EXHIBIT C. The successful Contractor shall procure and maintain insurance of the types and in the minimum amounts requested by the City. The insurance shall be written by a company licensed to do business in the State of Texas. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to 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. 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 must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. iv. 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 but not limited to 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 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. x. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. xi. 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 the requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 21. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, and 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 thirty (30) calendar days after receipt of notice by the Contractor. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 22. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified below. 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. If to Contractor: PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue Shelton, CT 06484 Attention: General Counsel 23. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 24. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that, to its knowledge: (i) the services 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. 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) resulting from: (i) the Contractor's breach of any of Contractor's representations or warranties stated in this Section 24 of this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage, at its own expense, its own separate counsel to act as co- counsel on the City's behalf. 25. CONFIDENTIALITY: In order to provide the services 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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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 may 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 except as may be required to fulfill its obligations of this Contract 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. 27. 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. 28. 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. 29. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 30. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire (Exhibit D). File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 31. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City, Texas, or his designee under this agreement. 32. 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 either party without the prior written consent of the other party. Any attempted assignment or delegation 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. 33. 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. 34. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any of either the City or Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 35. 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. 36. 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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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. 37. 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 the State of 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 either party to seek and secure injunctive relief from any competent authority as contemplated herein. 38. 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. 39. 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 Da observed File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 5:00 pm, Monday through Friday, excluding City of Denton Holidays. 40. 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. 41. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City. 42. 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 Contract. 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. 43. 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. 44. PREVAILING WAGE RATES: All respondents will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. htlp://www.access.gl2o.gov/davisbacon/tx.html 45. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all applicable 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. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 46. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 47. 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. 48. CONTRACTOR LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Contractor shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Contractor and its employees, agents, and subcontractors, in connection with negligent acts in the performance of the Contract. The Contractor shall notify the City Procurement Manager in writing of any such damage within one (1) calendar day. 49. FORCE MAJEURE: The City and the Contractor shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City. In the event of an occurrence under this Section, the Contractor will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Contractor continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Contractor shall notify the City Procurement Manager by telephone (to be confirmed in writing within ten (10) 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. 50. 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. 51. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of any immunities from suit or from liability that the City may have by operation of law. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 Exhibit B Special Terms and Conditions Total Contract Amount The contact total for services shall not exceed $87,937.30 for the three year (3) term. Pricing shall be per Exhibit E attached. Contract Term The contract term will be three (3) years, effective February 2, 2016 through January 31, 2019, unless terminated earlier by either party upon thirty (30) days written notice to the other party. To be effective the Contract must be approved by the Denton City Council and be signed by the Denton City Manager or his designee. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 Exhibit C INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed 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. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. • Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, and Employees. ■ 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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract. • 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, [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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [ ] 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 File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 ATTACHMENT 1 [ ] 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 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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; File 46047 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. File 46047 Dc cuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 >,, ONESOURCE LABORATORY SERVICES Quota ion um er Quotation Date 40562254 10/22/2015 Perkin E 'm eii- Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue Customer Contact Your Prior PO Number SHELTON CT 06484 -4794 171288 I 1SA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Page Number 1 of 6 CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA Serial Number (P1500311) Site Number Customer Number 100021902 4007095 Payment Terms Net 30 days Coverage Period Billing Plan 02/02/2016 to 01/31/2019 Yearly Page Number 1 of 6 Line Quantity Model Description List Price Net Price 10 1 ELAN9000 ELAN9000 ** 23,418.77 23,418.77 02/02/2016 to 01/31/2017 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 20 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 706.03 706.03 02/02/2016 to 01/31/2017 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 30 1 AS93PLUS AS93PLUS 3,386.57 3,386.57 02/02/2016 to 01/31/2017 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 40 1 MASSOFTWARE MAS SOFTWARE 885.53 02/02/2016 to 01/31/2017 Serial Number (P1500311) Repair Coverage Plan (Parts, Labor, Travel & Phone Support) Sub total for YEAR 1 50 1 ELAN9000 ELAN9000 ** 24,188.52 02/01/2017 to 01 /31/2018 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 885.53 28,396.90 24,188.52 Dc cuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 >,, ONESOURCE LABORATORY SERVICES Quota ion um er Quotation Date 40562254 10/22/2015 Perkin E 'm eii- Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue Customer Contact Your Prior PO Number SHELTON CT 06484 -4794 171288 I 1SA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Line Quantity Model CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. Site Number Customer Number 100021902 4007095 Payment Terms Net 30 days Coverage Period Billing Plan Page Number 02/02/2016 to 01/31/2019 Yearly 2 of 6 Line Quantity Model Description List Price Net Price 60 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 729.24 729.24 02/01/2017 to 01 /31/2018 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 70 1 AS93PLUS AS93PLUS 3,497.88 3,497.88 02/01/2017 to 01 /31/2018 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 80 1 MASSOFTWARE MAS SOFTWARE 914.64 02/01/2017 to 01 /31/2018 Serial Number (P1500311) Repair Coverage Plan (Parts, Labor, Travel & Phone Support) Sub total for YEAR 2 90 1 ELAN9000 ELAN9000 ** 24,914.16 02/01/2018 to 01/31/2019 Serial Number (P1500311) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 100 1 POLYSCIRECIRULATOR POLYSCIENCE RECIRCULATOR 751.08 02/01/2018 to 01/31/2019 Serial Number (G30778) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. 914.64 29,330.28 24,914.16 751.08 Dc cuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 >,, ONESOURCE LABORATORY SERVICES Quota ion um er Quotation Date 40562254 10/22/2015 Perkin E 'm eii- Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue Customer Contact Your Prior PO Number SHELTON CT 06484 -4794 171288 I 1SA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Line Quantity Model CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. Site Number Customer Number 100021902 4007095 Payment Terms Net 30 days Coverage Period Billing Plan Page Number 02/02/2016 to 01/31/2019 Yearly 3 of 6 Line Quantity Model Description List Price Net Price 110 1 AS93PLUS AS93PLUS 3,602.76 3,602.76 02/01/2018 to 01/31/2019 Serial Number (933S3101715) Comprehensive Coverage 2 PM visits; Parts, Travel, Labor, Phone Support & 15% Training Disc. This instrument is nearing the end of its serviceable life. As such, PerkinElmer will offer a service contract for this instrument whereby PerkinElmer will use all reasonable efforts to provide service including a service engineer's travel and labor, but cannot guarantee that all parts, among other items necessary for continued support will be available. PerkinElmer will not make additional attempts to procure unavailable parts. Please see our Terms and Conditions for further details. We strongly recommend you contact your sales representative to discuss suitable replacement options. 120 1 MASSOFTWARE MAS SOFTWARE 942.12 02/01/2018 to 01/31/2019 Serial Number (P1500311) Repair Coverage Plan (Parts, Labor, Travel & Phone Support) 942.12 Sub total for YEAR 3 30,210.12 DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 >,, ONESOURCE LABORATORY SERVICES Quota ion um er Quotation Date 40562254 10/22/2015 Perkin E 1m eii- Your Prior Agreement Quote Expiration Date 35388499 02/11/2016 dg eport Avenue er Health Sciences, Inc. 710 Bridgeport Customer Contact Your Prior PO Number 710 B SHELTON CT 06484 -4794 171288 I 1SA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA Site Number 100021902 Customer Number 4007095 Payment Terms Coverage Period Billing Plan Page Number Net 30 days 02/02/2016 to 01/31/2019 Yearly 4 of 6 Line Quantity Model Description Net Price Gross Price 87,937.30 Net Price 87,937.30 Note: taxes will be applied to your invoice if applicable DocuSign Envelope I)00 6 ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 RqM D Per kin E rim " PerkinElmer Health Sciences, Inc. - Service Agreement Terms and Conditions 1. TERMS OF AGREEMENT: These Service Agreement Terms and Conditions shall govern all orders for and purchases from PerkinElmer of services under a PerkinElmer Service Plan ( "Services ") and shall prevail over any pre - printed, standard or other terms set forth in Buyer's purchase order or any other document not signed by an authorized representative of PerkinElmer, which are hereby rejected and shall be void. Buyer's submission of a purchase order or other instrument regarding the purchase of Services in response to PerkinElmer's quotation or any other PerkinElmer document that includes or incorporates these terms shall be deemed acceptance of these terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order or other instrument. 2. REASONABLE EFFORTS: PerkinElmer will use reasonable efforts under the circumstances to provide Services as quickly as possible. The Services will be scheduled at a time mutually agreed upon by PerkinElmer and the Buyer. Parts and components replaced or otherwise utilized in the repair of the instrument may be either new or refurbished at the discretion of PerkinElmer. 3. TERM: TERMINATION: PerkinElmer may accept or reject at its discretion a purchase order for Services. Unless otherwise expressly stated by PerkinElmer in writing or under the terms of the purchased Service Plan, the initial term of a Service Plan and this Agreement is one year, commencing on the date designated by PerkinElmer in its quotation or otherwise specified to Buyer. A Service Plan may be terminated by either party upon at least thirty (30) days written notice to the other party. If Buyer is past due with respect to any invoices related to any account with PerkinElmer, PerkinElmer may, upon written notice to Buyer: suspend Services, demand payment for the balance due under this Agreement, and /or terminate this Agreement. In connection with a termination for convenience by either party, PerkinElmer shall refund Buyer any payments made by Buyer for Services beyond the effective date of termination, subject to a 15% cancellation charge on the total value of the underlying Service Plan. 4. PAYMENT: Payment is due by Buyer upon receipt of invoice. Unless installment payment terms are agreed in writing by PerkinElmer and Supplier, Buyer shall deliver payment in full to the address set forth in PerkinElmer's invoice. Invoices not paid timely are subject to the lesser of fifteen percent (15 %) per annum or the maximum prevailing legal interest rate, calculated from date of delinquency through the date payment is made in full. If PerkinElmer retains a collection agency and /or attorney to collect unpaid amounts, PerkinElmer may invoice Buyer for, and Buyer shall pay, all costs of collection including, without limitation, reasonable attorneys' fees. 5. WARRANTY: LIMITATION OF LIABILITY: PerkinElmer warrants that it will provide Services at least in accordance with generally accepted standards prevailing in the instrument repair industry, at the time and place performed. Warranty claims must be made within 90 days after Services are performed. PERKINELMER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. PERKINELMER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE- PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES, AT PERKINELMER'S OPTION. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL PERKINELMER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE, EVEN IF PERKINELMER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PERKINELMER'S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED OR OTHERWISE SHALL NOT EXCEED, AND BUYER'S EXCLUSIVE REMEDY IN ANY EVENT SHALL BE LIMITED TO, THE AMOUNT ACTUALLY PAID BY BUYER FOR THE UNDERLYING SERVICE PLAN. 6. EXCLUSIONS: Service Plans do not include software or firmware upgrades, except where specifically included in PerkinElmer's quotation, and do not include replacement of parts, costs or repairs for defects or damages arising from or in connection with (a) abuse, misuse, mishandling, improper or inadequate maintenance, or failure to operate equipment in accordance with applicable specifications or instructions; (b) causes beyond PerkinElmer's reasonable control, including, without limitation, acts of God, power surges or failure, failure or interruption in communication lines, or corrosive Buyer samples; (c) installation of software or interfacing, or use in combination with software or products, not supplied or authorized by PerkinElmer; or (d) electrical work, transportation, modification, relocation, deinstallation, reinstallation, repair or service, performed by Buyer or by persons other than PerkinElmer authorized personnel. Further, parts in contact with any liquid, including but not limited to, seals, filters, gaskets, valves, syringes, tubing, tips, etc., are considered wetted and shall be deemed user replaceable and not covered by any Service Plan, unless otherwise stated in PerkinElmer's quotation. 7. CONSUMABLEs: The cost of consumables supplied by PerkinElmer in performing the Services are the responsibility of Buyer unless otherwise stated in PerkinElmer's quotation. Consumables include PerkinElmer's usual and customary parts, supplies and other items which are expendable by their nature or intended use, and those which are listed in the applicable instrument user's manual. 8. INSTRUMENT RECERTIFICATION: PerkinElmer may require instrument recertification on a time and materials basis as a condition to performing Services if an instrument has not been under warranty or a service plan immediately prior to the time of Services. 9. TRAINING; INSTRUMENT RELOCATION: Service Plans do not include Buyer training or services related to the relocation of instruments unless otherwise specifically stated in writing by PerkinElmer in any particular case. 10.AssIGNMENT: GOVERNING LAw: Neither this Agreement nor any Service Plan is assignable or otherwise transferable by Buyer. These Service Agreement Terms and Conditions and any underlying Service Plans shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its conflicts of laws rules, and all disputes shall be subject to the exclusive jurisdiction of the courts therein. 11.AMENCMENT: ENTIRE AGREEMENT: No amendment or modification of these terms shall be binding unless in writing and signed by an authorized representative of both PerkinElmer and Buyer. These Service Agreement Terms and Conditions, together with PerkinElmer's quotation regarding the Service Plan(s) or other services subject to these terms and conditions, and PerkinElmer's description of the Services provided under the Service Plan purchased by Buyer, represents the entire agreement between the parties with respect to the subject matter herein. Service v08172010 Di )cuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 ONESOURCE LABORATORY SERVICES Quota ion um er Quotation Date 40562254 10/22/2015 Perkin E f m.r,,,! Your Prior Agreement Quote Expiration Date °u b:° (hc Bflntickm 35388499 02/11/2016 PerkinElmer Health Sciences, Inc. 710 Bridgeport Avenue Customer Contact Your Prior PO Number SHELTON CT 06484 -4794 171288 1 IRA TEL: (800) 762 -4000 FAX: (203) 944 -4983 Telephone Number 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE SERVICE PLAN 3 YR Site Address: Invoicing Address (if different) Telephone: CITY OF DENTON SCHWALM, FRITZ ACCOUNTS PAYABLE CITY OF DENTON 215 E MCKINNEY ST 1100 MAYHILL RD DENTON TX 76201 -4299 DENTON TX 76208 USA USA USTX03 Site Number Customer Number 100021902 4007095 Payment Terms Coverage Period Billing Plan Page Number Net 30 days 02/02/2016 to 01/31/2019 Yearly 5 of 6 Billing Plan Planned Invoice Invoice Amount($) Customers can also elect to a either month) quarterly, semi - annual) date(s) pay Y� q Y� Y 02/02/2016 28,478.38 over the entire coverage period, however an administrative 02/02/2017 29,332.73 surcharge will be applied to each invoice. 02/02/2018 30,126.19 Total billed 87,937.30 Billina Plan Invoice freauencv Total invoiced amount Single contract invoice 87,937.30 PerkinElmer Contact information Quoted by: EDWARD EBBERT Telephone: 615- 208 -1790 Fax Number: 203 - 944 -4983 Email: Zone: Zone 1 Region: W Texas /Gulf Svcx Location: USTX03 ■❑ Di )cuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 ONESOURCE LABORATORY SERVICES Quotation Date Quota ion um er 40562254 10/22/2015 Perkin E f m .r,,,! iir' Quote Expiration Date Your Prior Agreement 35388499 02/11/2016 PerkinElmer Health Sciences, Inc. Customer Contact Your Prior PO Number 710 Bridgeport Avenue SHELTON CT 06484 -4794 171288 USA Telephone Number TEL: (800) 762 -4000 FAX: (203) 944 -4983 940 - 349 -8615 Fax Number QUOTATION - COMPREHENSIVE Site Address: SCHWALM, FRITZ CITY OF DENTON 1100 MAYH I LL RD DENTON TX 76208 USA Site Number 100021902 SERVICE PLAN 3 YR Invoicing Address (if different) CITY OF DENTON ACCOUNTS PAYABLE 215 E MCKINNEY ST DENTON TX 76201 -4299 USA Customer Number 4007095 Payment Terms Coverage Period Billing Plan Net 30 days 02/02/2016 to 01/31/2019 Yearly 6 o Number f 6 Additional Notes: 1. This quotation is subject to the terms and conditions attached and is valid until the expiration date shown above. 2. Customer is responsible for applicable taxes, including sale, use and /or excise tax unless otherwise noted above. 3. If Preventative Maintenance is covered under your agreement, please indicate any special date requirements below. PM #1 PM #2 If any information presented on the document is incorrect e.g Billing address, serial numbers, please indicate the required changes below: PLEASE SIGN THIS MAINTENANCE AGREEMENT QUOTATION AND RETURN ORIGINAL COPY ALONG WITH YOUR PURCHASE ORDER TO: By Mail: By Fax: 203 - 944 -4983 PerkinElmer Health Sciences, Inc. OR 710 Bridgeport Avenue By E -mail: Mail Stop 75 Shelton, CT 06484 -4794 YOUR SIGNATURE BELOW CONFIRMS THAT YOU HAVE READ AND UNDERSTAND THE ABOVE STATEMENTS AND THAT THE INFORMATION INCLUDED THEREIN IS CORRECT TO THE BEST OF YOUR KNOWLEDGE. IN ORDER TO AVOID A LAPSE IN SERVICE COVERAGE, PLEASE FORWARD A PURCHASE ORDER PRIOR TO THE EFFECTIVE START DATE OF THE CONTRACT. Accepted By: Date Signature of Authorized Individual Date Print Name and Title Date Customer Purchase Order Number Date PerkinElmer Representative DocuSign Envelope ID: 8B590Al2- 55C0- 4D2B- 87E8- 266E05B34A47 EXHIBIT 6 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. This form does not apply. 4 X I have no Conflict of Interest to disclose. 5 igned by: 5�DocuS�Vuvj- hyk 1/27/2016 &WW4LOAMPM Ddoing business with the governmental entity Date Certificate Of Completion Envelope Id: 8B590A1255CO4D2B87E8266EO5B34A47 Subject: Please DocuSign: 6047 Contract Documents Perkin Elmer Source Envelope: Document Pages: 32 Signatures: 5 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC- 08:00) Pacific Time (US & Canada) Record Tracking Status: Original 1/15/2016 2:09:13 PM 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: MaryLynne Hartl marylynne.hartl @perkinelmer.com Contract Admin Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 1/27/2016 9:11:41 AM ID: b6dbc9b4- e08e- 466e- ab4d- 52e8f66268e3 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 C. Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 6 Holder: Rebecca Hunter rebecca.hunter @cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 EDocuSigned by: 4DFC5A7FB8FD43D . Using IP Address: 165.88.255.133 Ell ... Signed 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: 1/26/2016 3:25:23 PM Viewed: 1/26/2016 3:25:37 PM Signed: 1/26/2016 3:26:38 PM Sent: 1/26/2016 3:26:41 PM Viewed: 1/27/2016 5:46:27 AM Signed: 1/27/2016 9:13:33 AM Sent: 1/27/2016 9:13:38 AM Viewed: 1/27/2016 9:14:02 AM Signed: 1/27/2016 9:14:18 AM Sent: 1/27/2016 9:14:21 AM Viewed: 1/27/2016 9:44:00 AM ' StCUfttb Signer Events 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 Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events 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: Sherri Thurman sherri.thurman @cityofdenton.com 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 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: Fritz Schwalm fritz.schwalm @cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 6 Signature Signature Status Status Status Status Status P"IEL III�q� mlll m nn n� Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 1/27/2016 9:13:36 AM Sent: 1/27/2016 9:13:36 AM Viewed: 1/27/2016 9:18:09 AM EXHIBIT 6 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered ID: Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Alex Halters alex.halters@perkinelmer.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 1/27/2016 9:14:21 AM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: MaryLynne Hartl, Robin Fox EXHIBIT 6 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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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. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -136, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services CM/ ACM: Jon Fortune AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment No. 003 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $436,470.09; 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 1/28/2016 File #: ID 16 -136, 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 the following: 1. 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. 2. Approval of UAAA 002 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 on October 26, 2015. UAAA 002 was approved by City Council on November 17, 2015 in the amount of $1,627,185.71, none of which involved betterments payable by the City of Denton. 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 third of these amendments, UAAA 003, is attached hereto as Exhibit 2. This agreement is for the construction of the actual relocation and upsizing of an existing water line (from fl- inch diameter to 12 -inch diameter) and the abandonment of an existing wastewater line. The increased line size was provided by the Water Utility Department in order 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 003 in Exhibit 2 depict adjustments of water and wastewater lines along the IH35E Managed Lanes corridor primarily from Underwood Street on the south to Bonnie Brae Street on the north. The adjustments included in UAAA 003 are also verbally described in the Transmittal Memo from AGL Constructors to Don Toner with TxDOT located in the front portion of UAAA 003 in Exhibit 2. The total projected cost for the relocation and adjustment of the various lines as shown in UAAA 003 is $436,470.09. Since the betterment costs included in UAAA 003 are offset by the avoidance of the relocation of the existing 8 -inch water line and 8 -inch wastewater line located along IH35E between North Texas Boulevard and Bonnie Brae, all of the costs are payable by AGL Constructors at TxDOT's expense (no cost to the City). As a matter of fact, the credits included in this UAAA 003 will offset the additional work performed by AGL on PUAA 35E -U -503 (replacing failed 30 -inch raw water line segments and re- establishing a missing mud leg valve at a total cost of $40,773.95) and all other betterments requested of AGL. City of Denton Page 2 of 4 Printed on 1/28/2016 File #: ID 16 -136, Version: 1 OPTIONS 1. Approve Utility Adjustment Agreement Amendment 003. 2. Decline to approve Utility Adjustment Agreement Amendment 003. RECOMMENDATION Staff recommends approval of Utility Adjustment Agreement Amendment 003 between the City of Denton and AGL Constructors in the amount of $436,470.09 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 (no additional agreements are anticipated at this time). ESTIMATED SCHEDULE OF PROJECT Project should commence upon receipt of fully executed agreement from the State of Texas and be completed approximately 60 days later. It is anticipated that this work will be complete by April 15, 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) 1. Public Utility Board - February 9, 2015. 2. City Council - March 3, 2015. 3. Public Utility Board - June 22, 2015. 4. City Council - June 30, 2015. 5. Public Utility Board - August 10, 2015. 6. Public Utility Board - October 26, 2015. 7. City Council - November 17, 2015. 8. Public Utility Board - December 14, 2015. FISCAL INFORMATION All costs associated with the adjustment of City of Denton facilities located within the IH35E Managed Lanes Corridor included in UAAA 003 in Exhibit 2 will be borne in total by AGL Constructors. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities F,XHIRITS 1. Ordinance 2. Utility Adjustment Agreement Amendment (UAAA) 003. Respectfully submitted: Frank G. Payne, P.E. City of Denton Page 3 of 4 Printed on 1/28/2016 File M ID 16 -136, Version: 1 City Engineer City of Denton Page 4 of 4 Printed on 1/28/2016 h rvvm d by I cx:ls i''I ORDINANCE NO. 2016- AN ORDINANCE OF THE CITY COUNCIL OF-DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE "UTILITY ADJUSTMENT AGREEMENT AMENDMENT 003 FOR PROJECT UTILITY ADJUSTMENT AGREEMENT NO. 35E -U- 0503" WHICH AMENDS THE ORIGINAL "PROJECT UTILTY ADJUSTMENT AGREEMENT" IN THE AMOUNT OF $436,470.09; 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. 003 ( "35E -U -503- 003 "), 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. 003; 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 003 for Project Utility Adjustment Agreement No. 35E -U -503 -003 ( "Amendment No. 003 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. 003 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. 003 to PUAA" for Project betterments at the time the payment obligation arises, once the Amendment No. 003 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 .m , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY A 1` 1' l N :'Y By. /rrri��r, /r for rrf, City of Denton Utility Adjustment Agreement Amendment 003 For Project Utility Adjustment Agreement 35E -U -0503 (Conflict ID 503 -068A, 503 -076 & 503 -077) IH35E From IH 635 to US 380 Water Relocation Segment 4 Utility Owner Copy Table of Contents Utility Adjustment Agreement Amendment 35E -U- 0503 -003 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.) ROW Map i December 4, 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 -003, City of Denton, CSJ -R No. 0195 -03 -072, CSJ -C No. 0196 -03 -050, Limits: From US 77 South of Denton To IH 35W Dear Mr. Toner, AGL Constructors would like to submit this Utility Adjustment Agreement Amendment (UAAA) Assembly 35E -U- 0503 -003 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 waterlines to conflict with the proposed widening along IH35E: Adjustment of Conflict ID 503 -068A: The relocation of Conflict ID 503 -068A will consist of the installation of approximately 601f. of 12" D.I. waterline, 4981f. of 12" PVC C900 waterline, 361f. of 6" PVC C900 waterline, 35 If. of 2" PVC C900 waterline, 129 If. of 1" copper waterline, and appropriate appurtenances from ML Station 1984 +53 to ML Station 1989 +70. Abandonment will consist of 6301f. of 6" waterline. The proposed extension of 503 -068, for the majority of installation, falls outside of TXDOT and eliminates the need to relocate conflict 503 -076. The relocation will connect to an existing 8" waterline on the southwest side of IH 35E and north side of Underwood Street at ML Station 1989 +70. The proposed 12" waterline will travel north for 2 If., turn east, travel for 2 If., and split. The newly introduced 1" copper waterline will travel north for 26 If. and connect to an existing water meter. The initial 12" PVC waterline will continue east for 22 If., change pipe material from PVC to D.I., continue east for 20 If., change pipe material from D.I. to PVC, continue east for 8 If., and split. The newly introduced 1" copper waterline will travel south for 38 If. and connect to an existing water meter. The initial 12" PVC waterline will continue east for 11 If., and split. The newly introduced 6" waterline will travel north for 9 If. and connect to an existing fire hydrant. Halfway along the 9 If. 6" waterline the relocation will reduce to a 2" line, travel west for 16 If., turn north, travel 11 If., and connect to an existing 2" waterline at ML Station 1989 +33. The initial 12" waterline will continue east for 75 If. and split. The newly introduced 1" copper waterline II RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -003, City of Denton, CSJ -R No. 0195 -03 -072, CSJ -C No. 0196 -03 -050, Limits: From US 77 South of Denton To IH 35W will travel north for 17 If. and connect to an existing water meter. The initial 12" waterline will continue east for 8 If. and split. The newly introduced 2" waterline will travel south for 8 If. and connect to an existing 2" waterline at ML Station 1988 +28. The initial 12" waterline will continue east for 152 If. and split. The newly introduced 1" copper waterline will travel north for 18 If. and connect to an existing water meter. The initial 12" waterline will continue east for 28 If. and split. T'lie newly introduced 1" copper waterline will travel south for 301£ and connect to an existing water meter. The initial 12" waterline will continue east for 11 If. and split. The newly introduced 6" waterline will travel south for 27 If. and connect to an existing 6" waterline at ML Station 1986 +42. The initial 12" waterline will continue east for 71f., change pipe material from PVC to D.I., continue east for 20 If., change pipe material from D.I. to PVC, continue east for 143 If., turn southeast, travel for 13 If., change pipe material from PVC to D.I., continue southeast for 20 If., change pipe material from D.I. to PVC, continue southeast for 10 If., turn east, travel 5 If., and connect to conflict 503 -068 at ML Station 1984 +53. _y� xis trnctt cyl' Conflict ID 503 -076 The work on Conflict ID 503 -076 will consist of the rl�l` abandonment of approximately 2999 If. of 8" waterline. The waterline is located adjacent to the IH 35E SBFR and on the University of North Texas property from North Texas Blvd to Bonnie Brae that had been identified to conflict with the proposed improvements and reconstruction for IH 35E. Adjustment of Conflict ID 503 -077: The work on Conflict ID 503 -077 will consist of the abandonment of approximately 15191f. of 8" waste waterline. The waste waterline is located adjacent to the IH 35E SBFR and on the University of North Texas property that had been identified to conflict with the proposed improvements and reconstruction for IH 35E. The abandonment of the existing facilities shall be completed in accordance with AGL's Demolition and Abandonment Plan, UAR requirements, and details that are identified in the attached plans. All existing facilities identified in this immediate area that are not being adjusted at this time will be recorded under a future Abbreviated Utility Assembly to be executed in accordance with the Development Agreement (DA). In accordance with the DA, replacement cost for "like kind" relocations associated with this adjustment are 100% compensable to the City of Denton. All work being completed under this UAAA shall be completed by AGL and or their subcontractors. The total cost to relocate the City of Denton facilities is $436,470.09. The breakdown of cost based on the Right of Way CSJ's are as follows: CSJ 0195 -03- 072 =100% ($436,470.09). l �r RE: Utility Adjustment Agreement Amendment (UAAA), 35E -U- 0503 -003, City of Denton, CSJ -R No. 0195 -03 -072, CSJ -C No. 0196 -03 -050, Limits: From US 77 South of Denton To IH 35W The current schedule for beginning the work under this UAAA is anticipated to begin on or about January 19, 2016 and shall be completed in advance of March 1, 2016. We respectfully recommend your approval of this Utility Adjustment Agreement Amendment (35E- U- 0503 -003) as submitted. If you have any questions or require additional information, please contact me through the information provided below. Sincerely, �� Signed:. .... Z1411'57 Rich Krog, AGL Utility Manager 1.214.979.1144 (Direct) 1.512.207.0782 (Mobile) Email: rkrog@ltraengineers.com Cc: AGL Document Control If IH35- Checklist Rev. 11/2012 Page 1 of 4 TxDOT UTILITY ADJUSTMENT CHECKLIST (To be included with submittal) U -No.: 35E -U- 0503 -003 Utility Owner Name: City of Denton County: Denton Jurisdictions: 0195 -03 -072 Estimated Dollar Amount of Utility Adjustment /Cost to Developer: $436,470.09 ROW CSJ No.: 0195 -03 -072 Construction CSJ No.: 0196 -03 -050 Section or Segment Number: Segment 4 ® Actual Cost or ❑ Lump Sum (Check one) Federal -Aid ROW Project No.: IM 0356 (43 8) Alternate Procedure Approval Date: September 4, 2013 Highway Station Limits (To & From): IH35E — Segment 4: ROW CSJ 0195 -03 -072 From: US 77 South of Denton To: IH 35W Description/Scope of Work: aAdjustment Utility-Lin s 503 -0684 503 074 ,and 503 -077: Relocation will consist of 601f. of 12" D.I. waterline, 498 If. of 12" PVC C900 waterline, 361f. of 6" PVC C900 waterline, 35 If. of 2" PVC C900 waterline, 1291f. of 1" copper waterline, and appropriate appurtenances from ML Station 1984 +53 to ML Station 1989 +70. Abandonment will consist of 6301f. of 6" waterline, 2999 If. of 8" waterline and 15191f. of 8" waste waterline. 1. 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? IH35- Checklist Rev. 11/2012 Page 2 of 4 3. Yes ® No ❑ N/A ❑ 4. Yes ® No ❑ N/A ❑ Are explanations and clarifications included in the transmittal to describe unique conditions affecting the Utility? Have (3) identical originals of the Utility Assembly with plans been submitted, of which one original should be color- coded? 5. Yes ® No ❑N /A ❑ Has the Developer's Utility Design Coordinator located on the plans the major items of material listed on the estimate by scaling or stationing? 6. Yes ® No ❑ N/A ❑ Have the existing and proposed Utility facilities been plotted on the ROW map and attached with this submission? 7. Yes ® No ❑ N/A ❑ Have the Utility Adjustments been designed for the Proposed 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 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 418, is an affidavit and an ownership instrument (i.e. easement, license or deed) included? 20. Yes ® No ❑ N/A ❑ Do Utility Adjustment plans demonstrate Utility Accommodation Rules compliance, including minimum depth of cover from proposed grade and casing requirements? 21. Yes ®No ❑ N/A ❑ Is the proposed Utility Adjustment shown on the plans with stationing and offsets from centerline, edge of pavement, or ROW lines? 22. Yes ® No ❑ N/A ❑ Are backfill requirements met? 23. Yes ❑ No ❑ N/A ® Is a schedule of work provided by /required of the Utility Company 24. Yes ❑ No ® N/A ❑ 25. Yes ❑ No ❑ N/A 26. Yes ❑ Noi 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 F 32. Yes ❑ No ® N/A 0 33. Yes ® No ❑ N/A ❑ if the Utility Adjustment is large and complex? Is a Betterment credit applicable? If yes to 424, 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? =M* A 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: ,.m.n.. �,- Utility Design Cok... iinator .................... -- �........_......�....W..�.�... Approved by: m Utility Mane Recommended for Approval by: Quality Control Date: Comments: IH35E- USO -UM Rev. 6/2013 Page l of I 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 11/30115 City of Denton 35E -U- 0503 -003 Waterline 11130115 No. of sheets in Utility's plans: 15 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. 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. Am* 'i f 1H35E -USO -UDC Rev. 6/2013 Page I of 1 Utility Design Coordinator: Date plans received: Utility Company: Assembly "U" number: Type of Utilities: Date on Utility's plans: Developer's Utility Design Coordinator Utility No Conflict Sign -Off Form Joseph Murphy 11/30115 City of Denton 35E -U- 0503 -003 Waterline 11/30/15 No. of sheets in Utility's plans: 15 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: c Utility Coordination Firm Name: LTRA This form must be completed /signed and included in each Utility Assembly submitted to the Texas Department of Transportation. Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 1 of 6 Rev. 08/12 County: Denton Highway: IH 35E Limits: From: US 77 South of Denton To: IH 3 5 W Fed. Proj. No.: IM 0356 (438) ROW CSJ No.: 0195 -03 -072 Const. CSJ No.: 0196 -03 -050 UTILITY ADJUSTMENT AGREEMENT AMENDMENT (Developer Managed) (Amendment No. 003 to Agreement No.: 35E -U -05031 THIS AMENDMENT TO PROJECT UTILITY ADJUSTMENT AGREEMENT (this "Amendment "), by and between AGL Constructors, hereinafter identified as the "Developer ", and the City of Denton, hereinafter identified as the "Owner ", is as follows: WITNESSETH WHEREAS, the STATE of TEXAS, acting by and through the Texas Department of Transportation, hereinafter identified as "TxDOT ", proposes to construct the toll project identified above (the "Project ", as more particularly described in the "Original Agreement ", defined below); and WHEREAS, pursuant to that certain Development Agreement ( "DA ") by and between TxDOT and the Developer with respect to the Project, the Developer has undertaken the obligation to design, construct, and potentially maintain the Project, including causing the removal, relocation, or other necessary adjustment of existing utilities impacted by the Project (collectively, "Adjustment "); and WHEREAS, the Owner and Developer are parties to that certain executed Project Utility Adjustment Agreement designated by the "Agreement No." indicated above, as amended by previous amendments, if any (the "Original Agreement "), which provides for the adjustment of certain utilities owned and /or operated by the Owner (the "Utilities "); and WHEREAS, the parties are required to utilize this Amendment form in order to modify the Original Agreement to add the adjustment of Owner facilities not covered by the Original Agreement; and WHEREAS, the parties desire to amend the Original Agreement to add additional Owner utility facility(ies), on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the agreements contained herein, the parties hereto agree as follows: Amendment. The Original Agreement is hereby amended as follows: 1.1 Plans. (a) The description of the Owner Utilities and the proposed Adjustment of the Owner Utilities in the Original Agreement is hereby amended to add the following utility facility(ies) ( "Additional Owner Utilities ") and proposed Adjustment(s) to the Owner Utilities described in the Original Agreement ; 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 2 of 6 Rev. 08/12 Relocation will consist of 60 If. of 12" D.I. waterline, 498 If. of 12" PVC C900 waterline, 36 If. of 6" PVC C900 waterline, 35 If. of 2" PVC C900 waterline, 129 If. of 1" copper waterline, and appropriate appurtenances from ML Station 1984 +53 to ML Station 1989 +70. Abandonment will consist of 6301f. of 6" waterline, 2999 If. of 8" waterline and 1519 If. of 8" waste waterline. (b) The Plans, as defined in Paragraph 1 of the Original Agreement, are hereby amended to add thereto the plans, specifications and cost estimates attached hereto as Exhibit A. (c) The Plans attached hereto as Exhibit A, along with this Amendment, shall be submitted upon execution to TxDOT in accordance with Paragraph 2 of the Original Agreement, and Paragraph 2 shall apply to this Amendment and the Plans attached hereto in the same manner as if this Amendment were the Original Agreement. If the Owner claims an Existing Interest for any of the Additional Owner Utilities, documentation with respect to such claim shall be submitted to TxDOT as part of this Amendment and the attached Plans, in accordance with Paragraph 15(a) of the Original Agreement. 1.2 Reimbursement of Owner's Indirect Costs. For purposes of Paragraph 6 of the Original Agreement, the following terms apply to the Additional Owner Utilities and proposed Adjustment: (a) Developer agrees to reimburse the Owner its share of the Owner's indirect costs (e.g., engineering, inspection, testing, ROW) as identified in Exhibit A. When requested by the Owner, monthly progress payments will be made. The monthly payment will not exceed 80% of the estimated indirect work done to date. Once the indirect work is complete, final payment of the eligible indirect costs will be made. Intermediate payments shall not be construed as final payment for any items included in the intermediate payment. (b) The Owner's indirect costs associated with Adjustment of the Owner Utilities shall be developed pursuant to the method checked and described below [check only one box]: ® (1) Actual related indirect costs accumulated in accordance with (i) a work order accounting procedure prescribed by the applicable Federal or State regulatory body, or (ii) established accounting procedure developed by the Owner and which the Owner uses in its regular operations (either (i) or (ii) referred to as "Actual Cost ") or, ❑ (2) The agreed sum of $_ ( "Agreed Sum ") as supported by the analysis of the Owner's estimated costs attached hereto as part of Exhibit A. 1.3 Advancement of Funds by Owner for Construction Costs. (a) Advancement of Owner's Share, if any, of estimated costs 365451 3.DOC Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 3 of 6 Rev. 08/12 Exhibit A shall identify all estimated engineering and construction - related costs, including labor, material, equipment and other miscellaneous construction items. Exhibit A shall also identify the Owner's and Developer's respective shares of the estimated costs. The Owner shall advance to the Developer its allocated share, if any, of the estimated costs for construction and engineering work to be performed by Developer, in accordance with the following terms: ® The adjustment of the Owner's Utilities does not require advancement of funds. ❑ The adjustment of the Owner's Utilities does require advancement of funds and the terms agreed to between the Developer and Owner are listed below. [Insert terms of advance funding to be agreed between Developer and Owner.] (b) Adjustment Based on Actual Costs or Agreed Sum [Check the one appropriate provision, if advancement of funds is required]: The Owner is responsible for its share of the Developer actual cost for the Adjustment, including the identified Betterment. Accordingly, upon completion of all Adjustment work to be performed by both parties pursuant to this Amendment, (i) the Owner shall pay to the Developer the amount, if any, by which the actual cost of the Betterment (as determined in Paragraph 9(b)) plus the actual cost of Owner's share of the Adjustment (based on the allocation set forth in Exhibit A) exceeds the estimated cost advanced by the Owner, or (ii) the Developer shall refund to the Owner the amount, if any, by which such advance exceeds such actual cost, as applicable. The Agreed Sum is the agreed and final amount due for the Adjustment, including any Betterment, under this Amendment. Accordingly, no adjustment (either up or down) of such amount shall be made based on actual costs. 1.4 Paragraph intentionally left blank. 1.5 Responsibility for Costs of Adjustment Work. For purposes of Paragraph 4 of the Original Agreement, responsibility for the Agreed Sum or Actual Cost, as applicable, of all Adjustment work to be performed pursuant to this Amendment shall be allocated between the Developer and the Owner as identified in Exhibit A hereto and in accordance with §203.092, Texas Transportation Code. An allocation percentage may be determined by application of an eligibility ratio, if appropriate, as detailed in Exhibit A, provided however, that any portion of an Agreed Sum or Actual Cost attributable to Betterment shall be allocated 100% to the Owner in accordance with Paragraph 9 of the Original Agreement. 1.6 Betterment. (a) Paragraph 9(b) (Betterment and Salvage) of the Original Agreement is hereby amended to add the following [Check the one box that applies, and complete if appropriate]: The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, does not include any Betterment. Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 4 of 6 Rev. 08/12 The Adjustment of the Additional Owner Utilities, pursuant to the Plans as amended herein, includes Betterment to the Additional Owner Utilities by reason of [insert explanation, e.g. "replacing 12 "pipe with 24 "pipe], .... The Developer has provided to the Owner comparative estimates for (i) all work to be performed by the Developer pursuant to this Amendment, including work attributable to the Betterment, and (ii) the cost to perform such work without the Betterment, which estimates are hereby approved by the Owner. The estimated cost of the Developer work under this Amendment which is attributable to Betterment is $ , 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 actual cost for the identified Betterment. Accordingly, upon completion and acceptance by Owner of all Adjustment work to be performed by both parties pursuant to this Agreement, (i) the Owner shall pay to the Developer the actual cost of the Betterment (determined as provided below in this paragraph). Any additional payment by the Owner shall be due within sixty (60) calendar days after the Owner's receipt of the Developer's invoice therefor, together with supporting documentation including proof of implementation;. The actual cost of Betterment incurred by the Developer shall be calculated by multiplying (i) the Betterment percentage stated in Paragraph 1.6(a), by (ii) the actual cost of all work performed by the Developer pursuant to this Agreement (including work attributable to the Betterment), as invoiced by the Developer to the Owner. (c) The determinations and calculations of Betterment described in this Amendment shall exclude right -of -way acquisition costs. Betterment in connection with right -of -way acquisition is addressed in Paragraph 15 of the Original Agreement. (d) If Paragraph 1.6(a) identifies Betterment, the amount allocable to Betterment in Owner's indirect costs shall be determined by applying the percentage of the Betterment calculated in Paragraph 1.6(a) to the Owner's indirect costs. The Owner's invoice to the Developer for the Developer's share of the Owner's indirect costs shall credit the Developer with any Betterment amount determined pursuant to this Paragraph 1.6(a). (e) For any Adjustment from which the Owner recovers any materials and /or parts and retains or sells the same, after application of any applicable Betterment credit, the Owner's invoice to the Developer for its costs shall credit the Developer with the salvage value for such materials and /or parts 1.7 Miscellaneous. Texas Department of Transportation Form TxDOT- DA- U- 35A -DM -IH 35E Page 5 of 6 Rev. 08/12 (a) Owner and Developer agree to refer to this Amendment, designated by the "Amendment No." and "Agreement Number" indicated on page 1 above, on all future correspondence regarding the Adjustment work that is the subject of this Amendment and to track separately all costs relating to this Amendment and the Adjustment work described herein. (b) [Include any other proposed amendments allowed by applicable law.] 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 -IH 35E Page 6 of 6 Rev. 08/12 APPROVED BY: TEXAS DEPARTMENT OF TRANSPORTATION DEVELOPER By: ..__ s........ By: Authorized Signature Dul Gith« i :d Representative Printed Name: Donald C. 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MV 00-0019 'Mll 9102/0M 0 }0`49J "Don UT -93 - City of Denton Item CITY Unit I Unit Cost Subtotal 12" x 8" Reducer 1 EA $ 350.00 $ 350.00 12" x 6" Tee 2 EA $ 250.00 $ 500.00 6" plug 2 EA $ 250.00 $ 500.00 8" Plug 1 EA $ 250.00 $ 250.00 2" waterline 35 i LF $ 85.00 $ 2,975.00 2" service tap (Tapping Saddle) 2 EA $ 350.00 $ 700.00 6" PVC Waterline 36 LF $ 110.00 $ 3,960.00 12" PVC Waterline 498 LF $ 145.00 $ 72,210.00 12" DI Waterline 60 LF $ 160.00 $ 9,600.00 6" Gate Valve 2 EA $ 1,500.00 $ 3,000.00 8" Gate Valve 1 EA $ 1,700.00 $ 1,700.00 12" Gate Valve 2 EA $ 2,500.00 $ 5,000.00 Residential Service Meter Connection 5 EA $ 600.00 $ 3,000.00 FH Assembly (Connect Existing) 1 EA $ 1,000.00 $ 1,000.00 Abandonment & Removal (6" WL) 630 LF $ 10.00 $ 6,300.00 Mill and Replace HMAC Pavement @ 7" 1722 SY $ 53.17 $ 91,558.74 Lime Stabilization @ 6" 1722 SY $ 6.52 $ 11,227.44 CIP Intersection Flume 5 CY $ 180.00 $ 900.00 � fay � fh t , �� /// Abandonment & Removal (8" WL) 2999 LF $ 10.00 $ 29,990.00 Abandonment & Removal (8" WW) 1519 LF $ 10.00 $ 15,190.00 City Inspection 120 HR $ 95.00 $ 11,400.00 City Engineering 160 HR 2$ 325.00 1 $ 52,000.00 Civil Subtotal $ 323,311.18 *AGL OH &P 35.00% % $ 323,311.18 $ 113,158.91 GRAND TOTAL $ 436,470.09 *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) Page 1 of 2 U- N umber: 35E -U- 0503 -003 ROW CSJ: 0195 -03 -072 County: Denton District: Dallas Highway: IH 35E Federal Project No.: IM 0356 (438) From: US 77 South of Denton 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 rights it may have on, along or across, and within or over such limits of the highway right of way as indicated by the location map attached hereto. NOW, THEREFORE, in consideration of the covenants and acknowledgements herein contained, the parties mutually agree as follows: It is agreed that joint usage for both highway and utility purposes will be made of the area within the highway right of way limits as such area is defined and to the extent indicated on the aforementioned plans or sketches. Nothing in this Acknowledgement shall serve to modify or extinguish any compensable property interest vested in the Utility within the above described area. If the facilities shown in the aforementioned plans need to be altered or modified or new facilities constructed to either accommodate the proposed highway improvements or as part of Utility's future proposed changes to its own facilities, Utility agrees to notify TxDOT at least 30 days prior thereto, and to furnish necessary plans showing location and type of construction, unless an emergency situation occurs and immediate action is required. If an emergency situation occurs and immediate action is required, Utility agrees to notify TxDOT promptly. If such alteration, modification or new construction is in conflict with the current highway or planned future highway improvements, or could endanger the traveling public using said highway, TxDOT shall have the right, after receipt of such notice, to prescribe such regulations as necessary for the protection of the highway facility and the traveling public using said highway. Such regulations shall not extend, however, to requiring the placement of intended overhead lines underground or the routing of any lines outside of the area of joint usage above described. If Utility's facilities are located along a controlled access highway, Utility agrees that ingress and egress for servicing its facilities will be limited to frontage roads where provided, nearby or adjacent public roads and streets, or trails along or near the highway right of way lines which only connect to an intersecting road. Entry may be made to the outer portion of the highway right of way from any one or all access points. Where supports, manholes or other appurtenances of the Utility's facilities are located in medians or interchange areas, access from the through- traffic roadways or ramps will be allowed by permit issued by the State to the Utility setting forth the conditions for policing and other controls to protect highway users. In an emergency situation, if the means of access or service operations as herein provided will not permit emergency repairs as required for the safety and welfare of the public, the Utility shall have a temporary right of access to and from the through- traffic roadways and ramps as necessary to accomplish the required repairs, provided TxDOT is notified immediately when such repairs are initiated and adequate provision is made by Utility for the convenience and safety of highway traffic. Except as expressly provided herein, the Utility's rights of access to the through- traffic roadways and /or ramps shall be subject to the same rules and regulations as apply to the general public. rn 'iai 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: Citv of Denton Name t utility I4By: U t otl ed Srer ' 1 /me ° lin�ltia 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 Statement of Work U -48 Not Applicable Developer Managed Agreement AGL will complete work under this PUAA Affidavit Not Applicable No Utility Owner Property Interest at this Location Quitclaim Deed Not Applicable No Utility Owner Property Interest at this Location City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -172, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for a Compensation and Classification Study for non -civil service City of Denton employees; providing for the expenditure of funds therefore; and providing an effective date (RFP 5972 - awarded to Ulibarri -Mason Global HR, LP in a not -to- exceed amount of $124,087.80). FILE INFORMATION The City's current compensation plan was implemented in 2007. Since implementation, several challenges have surfaced that include: • External equity concerns - ensuring that the pay plan was competitive with the labor market. • Internal equity concerns- ensuring "pay equity" existed between positions that are similar in nature. Over the years, the City had "tweaked" the compensation plan so much that internal equity had been negatively affected. • Ensuring better recognition of top performers to assist with employee morale. 0 Compression issues with supervisors and subordinates. • Need a salary structure that can be adaptable to the dynamic markets for the varying business units the City operates such as Electric, Technology Services, Solid Waste, etc. 0 Use of non - traditional compensation plans to compete for highly technical trades. • Recruitment and retention challenges with our some field services workers and equipment operator positions. • A simplified pay structure that can easily be explained to managers and employees and can easily be adjusted over time as needed. City of Denton Page 1 of 3 Printed on 1/28/2016 File #: ID 16 -172, Version: 1 Staff solicited proposals from firms to review the current plan, and to possibly implement a new plan. The RFP requested cost options on flat fee basis for two projects: Project 1 was a compensation plan review and Project 2 was for or a wage /salary survey. Under Project 1, they had two options: Option l: Recommend adjustments to the existing pay structures, or Option 2: Recommend new wage /salary structures altogether. Request for Proposal (RFP) 45972 was issued on October 21, 2015, and sent to 404 prospective providers. This RFP was advertised on the Materials Management website and in the local newspaper. Eight proposals were received. None of the respondents are located within the Denton city limits. Three members of the Human Resources staff as well as a representative from Denton Municipal Electric, evaluated the proposals based on the published criteria of • Compliance with specifications, quality, reliability, characteristics to meet stated or implied needs (20 %) • Indicators of probable performance under the contract (20 %) • Work plan methodology (10 %) • Price, total cost of ownership (50 %) Based on the initial evaluation and scoring, four (4) respondents were selected for face -to -face interviews with the evaluation team. Following the interviews, those four respondents were re- evaluated and re- scored and one finalist was selected for on -site visits with the City Manager and Assistant City Managers. Following the on -site visits and interviews, the finalist was re- scored and the evaluation team ranked Ulibarri- Mason (UM) Global HR, LP as the highest scoring respondent and providing the best value for the City. RECOMMENDATION Award a contract for a Compensation and Classification Study for non -civil service City of Denton employees to Ulibarri -Mason Global HR, LP in a not -to- exceed amount of $124,087.80. This includes a flat fee cost for Project 1, Option 2 (new pay structure(s)) and Project 2 (wage /salary survey) of $112,087.80. Ulibarri -Mason Global HR, LP offered a 10% discount for performing the services associated with both projects. In addition to the flat fee cost above, staff is including contingency funding for ad hoc consulting services including assistance after implementing recommendations, and additional meetings and /or training in the amount of $12,000 (80 hours @ $150 /hour). City of Denton Page 2 of 3 Printed on 1/28/2016 File #: ID 16 -172, Version: 1 PRINCIPAL PLACE OF BUSINESS Ulibarri -Mason Global HR, LP Dallas, TX 75234 ESTIMATED SCHEDULE OF PROJECT The target date for completion of all tasks under this contract is June 1, 2016. However, this contract will be in effect through December 31, 2016 for ad hoc services, if needed. FISCAL INFORMATION These services will be funded from the General Fund Human Resources account 150001.7854. Requisition number 126341 has been entered into the Materials Management software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.2 Develop a high - performance work force EXHIBITS Exhibit l: Evaluation/Ranking Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Carla Romine- Haggmark at 349 -8344. City of Denton Page 3 of 3 Printed on 1/28/2016 c Y F o 0 0 o @ a Y E aci 3 u a o o . co ° ° o O ° o ° O e O m x a O @ a O � > N O g u 0 0 m N VT ° o N o VT V N � Y v " o � O O1 N O @ J U Z v n o c; = E - o " y Y u Q @ a o 0 0 0 0 0 0 O t V 0 _ U � a O u N VT N VT N N � O U v' is - _ _ 0 O u o c ac ti 0 0 Ul vii O O u O N VT N o VT � W y� 6 O v o 0 O ° E = Y o X O `o u a 3 o - @ N O m w W v M o _ y� = O o - .o o � e 0 @ d > v o O o J u N VT N Vl rf� E O C O /0 Z lu a 3 " ' N O ❑ O. O O u aj N l N ~ O o N N rq N N > p fi O w O N tc w fi C .fi .c ti .O W� > > ClN _ u W ut N m ,c N tp O o O o N O b vt I� 0o co o m m m n EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR A COMPENSATION AND CLASSIFICATION STUDY FOR NON -CIVIL SERVICE CITY OF DENTON EMPLOYEES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFP 5972- AWARDED TO ULIBARRI -MASON GLOBAL HR, LP IN A NOT -TO- EXCEED AMOUNT OF $124,087.80). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for a Compensation and Classification Study for non -civil service employees 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 5972 Ulibarri -Mason Global HR, LP $124,087.80 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 2 proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5972 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 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ULIBARRI -MASON GLOBAL HR, LP (Contract 5972) THIS CONTRACT is made and entered into this date , by and between Ulibarri -Mason Global HR, LP, a partnership, whose address is 3010 LBJ Freeway, Dallas, TC 75234, 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 5972- Compensation and Classification Study for Non -Civil Service Employees , 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) Certificate of Interested Parties Electronic Filing (Exhibit "E "); (f) Contractor's Proposal. (Exhibit "F "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DocuSigned by: 5,6 S21996C2A28439... Contract # 5972 CONTRACTOR �1DocuSigned by: BY: ' /aIn it U�il�aV�i AU (YR 'r,MTY'S1IGNATURE Date: 1/25/2016 Name: Daniel ulibarri Title: President 469- 767 -1772 PHONE NUMBER danu @umglobalhr.com EMAIL ADDRESS danufummgl obal h r . comet TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $124,087.80. Pricing shall be per Exhibit F attached. Contract Term All tasks initiated under this contract must be completed by June 1, 2016. The City may opt to use as ad hoc services through December 31, 2016 Tasks Pricing below assumes the completion of both projects. Should the City not opt to not include project 2, the pricing would increase by 10% for project 1. Project 1 — Compensation Plan $57,947.40 1.1 Review current compensation philosophy and objectives to determine if they address the City's recruitment, retention, and internal/external equity desires. If needed, formulate and recommend a new philosophy and compensation objectives that are easy to communicate to City Council, management, and employees. 1.2 Review and analyze market data for assessment of competitiveness of pay ranges for the General Career Ladder, Technology Services Career Ladder, the Electric Career Ladder, Electric Energy Market pay ranges, and the Electric Craft pay plan. This may include conducting a salary survey as outlined in "Project 2" or it may include an assessment of data readily available to the Consultant. The City will need to approve any data used by the Consultant. 1.3 Review, analyze, and recommend "best practice" pay practices. When determining "best practice" pay practices, the consultant should be mindful of the various industries represented in a full- service City. 1.4 Review and analyze actual pay practices within our organization (including a compa ratio analysis). The City will submit raw data for the consultant to compile. 1.5 Make recommendations for adjustments to our wage /salary structures based on analysis of the aforementioned. Recommendations should address compression issues between supervisors and subordinates. 1.6 Address range penetration compression issues between new hires and more tenured employees and make recommendations for resolution; 1.7 Conduct financial impact analysis of implementing adjustments (Option 1) or new structure (Option 2) and make recommendations for alternatives. 1.8 Make recommendations for other compensation options (other than base pay) and cash incentives that are compliant with Federal and State laws and can be sustained by a municipality. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 1.9 Provide consulting services for administration of our compensation plan on an ad hoc basis. If this is not included as part of the compensation services pricing, please include an hourly rate for such services. Upon completion of Project 1, they City and Contractor will decide the best course of action based upon Contractors findings. The City will then choose either one of the two options of Project l: Option 1: INCLUDED Project Completion Date: March 31, 2016 Recommend adjustments to the existing pay structures. With option 1, the Consultant shall: 1.9.1 State the change(s) to be made 1.9.2 State the basis for the change(s) Option 2: ADD $19,580.40 Project Completion Date: April 30, 2016 Recommend new wage /salary structures. With option 2, the Consultant shall: 1.9.3 Determine if the City's current classification system will support or can be integrated with the recommended compensation structures. 1.9.4 If required, the Consultant shall provide a work plan and recommendations for a new or alternative job classification structure, philosophy, and procedures that will account for internal and external equity, organizational reporting relationships, and the market salary position of jobs. Any classification system shall comply with all Federal and State employment legislations. 1.9.5 Conduct a job analysis and recommend job classifications and hierarchy for all existing job classifications. 1.9.6 Review existing job descriptions to ensure compliance with Federal and State employment legislations. 1.9.7 Assist with creation of job descriptions for classified positions that do not have one. 1.9.8 Provide detailed documentation and training for the on -going maintenance of the classification structure system. Project 2 — Wage /Salary Survey $34,560.00 Project Completion Date: May 31, 2016 1.1 Review existing benchmark organizations and recommend changes as necessary (the City wants to include public and private sector data, as appropriate). 1.2 Review existing benchmark positions and recommend changes as necessary. 1.3 Write summary descriptions for each of the positions to be surveyed. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 1.4 Develop survey template to be sent to each employer being asked to participate in the survey. 1.5 Survey should include questions regarding other forms of compensation to ensure that we capture all forms of cash rewards /incentives. 1.6 Contact organizations to solicit participation in survey. 1.7 Once the survey is distributed electronically, follow up frequently with each employer to remind them of the need to complete the survey by the prescribed deadline and to answer any of their questions. This continued follow up is needed to ensure the maximum number of respondents and the reliability and validity of the results. 1.8 Review data and following up on anomalies to ensure data is not skewed. 2.9 Tabulate and report results (electronically) for each of the surveyed positions and benefit information. At a minimum, results should include actual average, median pay, average minimum rate, average midpoint, and average maximum rate. A comparison should be made comparing actual average pay to Denton's actual average pay; midpoint to midpoint; and actual average pay to Denton's midpoint. 2.10 Generate a summary report of the highlights of the survey and any major findings. This report will need to be delivered electronically to the City. Hard copies should also be available if requested by the City. 2.11 Distribute survey results electronically to participating organizations. All materials and documentation given to the City of Denton must be provided in Word, Excel (or any other mutually agreed upon media) and will become property of the City. City Council Workshop $ Included Contractor will prepare an easy to understand workshop for City Council at no additional cost to the City. The workshop will focus on educating the City Council about the City's Career Ladder, Pay Plans and on the issues faced by the City in administering the current pay plan, and hence the scope of work. In addition to the goal of getting the City Council to understand the pay plan and the City administration's concerns, the "Workshop" has the added benefit that it does not have to be conducted as an "open meeting ". Ad Hoc Services The City may opt to utilize Contractor for additional consulting services under this contract. The fee would be $150 /hour as needed and approved by the City. The total ad hoc services may not exceed $12,000. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Exhibit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights -of -way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the 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. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 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. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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 - 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. IOa - IOd) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 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. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [ ] 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 Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] 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. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 ATTACHMENT 1 [ ] 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. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Exhibit E Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at: https: / /www.ethics.state .tx.us /whatsnew /elf info_form1295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasin(cr�,cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 — Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission's website within seven business days. Contract 4 5972 DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Cover Sheet RFP # 5972- Compensation & Classification Study for Non -Civil Service Employees Ulibarri -Mason Global HR, LP 3010 LBJ Freeway Suite 1200 Dallas, TX 75234 Contact: Dr. Daniel Ulibarri Phone: 469- 767 -1772 Fax: 214- 764 -9683 www.umalobalhr.com Email: danu @umglobalhr.com DocuSign Envelope ID: A893F5CA- 6439 -4B26- 8609- C1F00682DD26 EXHIBIT 3 Pricing Sheet RFP 5972 - Compensation & Classification Study for Non -Civil Service Employees Item # Description of Services Cost of Service Work Hours to Complete Task 1A Flat fee for completing Project 1 with Option 1 $ 57,947.40 438 iB IFlat fee for completing Project 1 with Option 2 $ 77,527.80 586 1C per hour rate for ad hoc consulting services $ 150.00 2 Flat fee for completing Project 2 (see Miscellaneous cost below) $ 34,560.00 256 Total Cost of Services - with Option 2 $ 112,087.80 * 10 % Discount applied to pricing. City is opting to complete Project 1 and 2 I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Table of Contents CHECKLIST 2 ATTACHMENT A- BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 3 1. Contact Information: 3 2. Subsidiary of: 3 3. Organization Class (circle): 3 4. Tax Payer ID #: 3 5. Date Established: 3 6. Historically Underutilized Business: 3 8. Detailed listing of all products and /or services that your company provides: 3 9. Has your company filed or been named in any litigation? 4 10. Have you ever defaulted on or failed to complete a contract? 4 11. Have you ever had a contract terminated by the Owner? 4 12. Has your company implemented an Employee Health and Safety Program? 4 13. Resident /Non - Resident Bidder Determination: 4 14. Details About UM Global HR LP Per Evaluation Criteria 5 15. UM Global HR LP's Qualifications Per Section 3 of Main Document 10 ATTACHMENT A — SUPPLEMENTAL QUESTIONS 13 16. Brief Company History 13 UM Global HR Brief History 13 17. Proposed Team Assigned to this Project. 14 18. Availability: 15 19. Work Plan and Methodology 16 Methodology 18 Our Initial Opinion 18 Scope of Work Project One 18 Internal Structural Analysis of Career Ladder Pay Plans 21 20. Time Schedule: 26 21. Price Proposal: 27 Option 1 27 Option 2 28 22. Project Lists: 30 ATTACHMENT B- SUBMISSION EXCEPTIONS 31 ATTACHMENT D- REFERENCES 32 ATTACHMENT E- CONFLICT OF INTEREST QUESTIONNAIRE 34 ATTACHMENT F- ACKNOWLEDGEMENT 35 r I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Nei miummili vmm9 Check when Completed Task to be Completed by Respondent ✓ Exhibit 1 — Pricing sheet ✓ Review Exhibit 2 — General Provisions and Terms and Conditions ✓ Review Exhibit 3 — Scope of Work /Technical Specifications X Review Exhibit 4 — Technical Drawings and Plans if applicable) X Submission of Exhibit 5 — FTP Site Form if applicable) X Review Exhibit 6 — Federal Grant Requirements if applicable) ✓ Cover sheet ✓ Solicitation number ✓ Solicitation name ✓ Firm name ✓ Firm address ✓ Contact name ✓ Contact phone ✓ Contact fax ✓ Website address ✓ Contact email address Solicitation Checklist ✓ Attachment A- Business Overview Questionnaire ✓ Document how firm meets minimum qualifications Section 3 ✓ Detail to support evaluation criteria ✓ Attachment B — Exception Form ✓ Attachment C — Safety Record Questionnaire if applicable) ✓ Attachment D — Reference Form ✓ Attachment E — Conflict of Interest Questionnaire Form — with signature ✓ Attachment F - Acknowledgment ✓ Acknowledgment of Addenda ✓ Submission signed by authorized officer, in the orderspecified below Hard Copy Submission: If submitting a hard copy, the City requires one (1) original and four (4) copies, with the pricing sheet submitted electronically in excel or emailed in excel to Ebids cit ofdenton.com with the Solicitation # and name in the subject line. ✓ Electronic Submission: If submitting an electronic proposal only, email to EbidsO,cityofdenton.com with the Solicitation # and name in the subject line. The pricing sheet Exhibit 1 must be in excel format. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 FORMS ATTACHMENT A-BUSINESS OVERVIEW QUESTIONNAIRE AND 1. Contract Information (for formal contracting purposes): The following information will be used to write a contract, should your firm be selected for award. • Firm's Legal Name: Ulibarri -Mason Global HR, LP. Doing business as UM Global HR • Address: 3010 LBJ Freeway, Dallas, TX 75234 • Agent Authorized to sign contract (Name): Daniel Ulibarri, PhD, President • Agent's email address: danu @umglobalhr.com UT MWEN, Ulibarri -Mason Global HR Management, Inc. 111111 lI� III III, III I, 'Partnersh I Corporation Individual Association 20- 2423821 October 2004 6. Historically Underutilized Business: Gor No 7. Does presence State of Texas, or the City of Denton? Yes o N in which? State of Texas- Dallas. Owners are residents of Denton County. 8. Please provide a detailed listing of all products and/o your company provides. • Human Resources Consulting • Organizational Development and Reorganization • Compensation and Classification Research and Analysis with Salary Studies- local and national • Job Analysis and Job Evaluation • Internal Equity Analysis and FLSA evaluations UM Global HRLP aozo 1 aJ prmmwav^ Suite 3200^ oaUay^Tx7s2a4Tm|� 972 939 6383 NO! If so provide details of the issues and resolution if available. Include lawsuits where Owner was 10. Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. NO sit Me 12. Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and/or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? NO. Standards do not apply hu our workplace. Texas Government Code Section 2252.002: Non-resident bidders. Texas law prohibits cities and other governmental units from awarding contracts to a non-resident firm unless the amount of such a bid is lower than the lowest bid by a Texas resident by the amount the Texas resident would be required to underbid in the non-resident biddem'atahu. |n order hu make this determination, please provide the name, address and phone number of: a. Responding firms principle place mfbusiness: 3D1DLBJ Freeway, Suite 12DD Dallas, TX 75234 b. Company's majority owner principle place mfbusiness: 3D1DLBJ Freeway, Suite 12DD Dallas, TX 75234 m. Ultimate Parent Company's principle place of business: 3D1DLBJ Freeway, Suite 12DD Dallas, TX 75234 I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Experience The Principal Consultants and Senior Consultants of Ulibarri -Mason Global HR LP ( UMGHR) have a collective experience that spans 30 plus years. These experiences are focused on knowledge and expertise -based project delivery. In other words, all our engagements are presented to us with unique challenges to which we tailor -make unique solutions. As an organization, UMGHR has been providing strategic compensation services to governmental agencies, on Federal, State, County and Municipal levels since 1994. Our services include: • Job Analysis and Job Description Development • Compensation, Benefits, and Classification Studies • Performance Assessment & Pay for Performance Consulting • Organizational Development and Strategic Planning • Transition, Change Management and Implementation UMGHR employs 11 senior -level HR professionals and three office support staff who assist in the daily office management and research activities. Our consultants are degree holders, and are certified by professional bodies in Human Resources, Compensation, and Quality Assurance. Each of our Principal and Senior Consultants has over 10 years of senior level experience in compensation structure development, job classification, job analysis, organizational development, and HR tasks associated with the City of Denton's scope of work. We have had the greatest opportunity to work with local governments and state agencies, whose services, departments, and size are similar to the City of Denton. We have worked with the Police and Fire Department in developing their compensation strategy. We also worked with magistrates, judicial branches, executive branches, and legislative branches of city and state governments. Latest projects we completed (Partial List): Name of Clients Projects City of Globe, Arizona Job Evaluation, Compensation Structure Development & Compensation Study for Fire, Police, Staff, Administrative Gila County, Arizona Classification and Compensation Study for the whole count Northern Arizona Intergovernmental Transportation Agency (NAIPTA), Flagstaff, AZ Job Evaluation, Compensation Structure Development & Compensation Study North Texas Tollway Authority NTTA , Plano, Texas Classification and Compensation Study University of Houston - Downtown Compensation Study for Staff, Police, IT, and Faculty Texas Medical Board Compensation Study for support staff Dallas County Community College Faculty Compensation Stud Alamo Colleges, San Antonio, TX Faculty Compensation Stud Truckee Meadows Community College, Reno, Nevada Faculty and Staff Compensation Study I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HIR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Experience of Principal Consultants and Senior Consultants to be involved in this Project: Delivery The delivery of our services are predicated upon strong Quality Management and Quality Assurance programs that we share with our clients. We provide our clients with communication tools, web application tools, escalation process, and post - delivery services. In particular: Communication Tools — Project Dashboard: We provide web accessible, interactive project dashboard and calendaring solution. The objective for having these tools is to make information exchange possible and seamless among project delivery teams, both from client's side of the house and ours. More specifically, our project dashboard provides visibility into the project's milestones, outstanding deliverables, deadlines, downloadable reports, gauges, and process owners. The calendaring application ensure that everyone involved in the project is aware of project schedules, including critical dates such as presentations to Executive groups, Council Members, Department Heads, Supervisors, and /or employees at large. Given that the HR Department at City of Denton is currently very busy with another sizable concurrent project, our project dashboard and calendaring web interface will be invaluable tools to have for this project. Our dashboard and calendaring solution are provided to our clients for the duration of the project free of charge. Secured File Transfer Protocol (SFTP): The purpose for providing this tool is to make sharing of large or big data and documents easier by having the ability to upload and download documents. Our SFTP sites are provided to our clients for the duration of the project free of charge. Years Experience Consultant Providing Compensation Projects Handled Consulting Job Evaluation, Compensation Structure Daniel Ulibarri, PhD, Development & Compensation Study, Job SPHR 15 Classification, HR Transformation, Faculty (Principal Consultant) Compensation, Electric Power and Gas Industry Compensation study, Higher Education Compensation Stud Elena Mason, CCP, Job Evaluation, Compensation Structure SPHR 12 Development & Compensation Study, Job (Principal Consultant) Classification, HR Transformation, Faculty Compensation Study. Joyce Howell, PHR 15 Compensation Study for support staff Senior Consultant James Litrownik, MA 15 Classification and Compensation Study Senior Consultant Delivery The delivery of our services are predicated upon strong Quality Management and Quality Assurance programs that we share with our clients. We provide our clients with communication tools, web application tools, escalation process, and post - delivery services. In particular: Communication Tools — Project Dashboard: We provide web accessible, interactive project dashboard and calendaring solution. The objective for having these tools is to make information exchange possible and seamless among project delivery teams, both from client's side of the house and ours. More specifically, our project dashboard provides visibility into the project's milestones, outstanding deliverables, deadlines, downloadable reports, gauges, and process owners. The calendaring application ensure that everyone involved in the project is aware of project schedules, including critical dates such as presentations to Executive groups, Council Members, Department Heads, Supervisors, and /or employees at large. Given that the HR Department at City of Denton is currently very busy with another sizable concurrent project, our project dashboard and calendaring web interface will be invaluable tools to have for this project. Our dashboard and calendaring solution are provided to our clients for the duration of the project free of charge. Secured File Transfer Protocol (SFTP): The purpose for providing this tool is to make sharing of large or big data and documents easier by having the ability to upload and download documents. Our SFTP sites are provided to our clients for the duration of the project free of charge. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Communication Strategy As indicated in the RFP, we understand that project oversight and management from the City's side of the house will be minimal, due to another critical project that is taking place at the same time. For this reason, we recommend a communication approach that would ensure this project is delivered on time, complete, and above all at a quality that exceeds expectations. Such communication approach involve: 1) Necessary interactions between Consultants and City of Denton's HR Department - The use of our project dashboard for managing projects, tracking project tasks, deadlines, and milestones will be invaluable to this project. o Documents such as: initial findings, draft reports, and spreadsheets will be uploaded by us on the dashboard for the City HR Department's review. HR Department will be notified by email every time new reports are available. HR can download the documents and if everything is satisfactory, there will be a checkmark for HR to click, along with digital signature, to signify HR Department's approval of each document. o We can also provide a public project dashboard, where employees can see the progress of the project. We noted that the Scope of Work calls for a communication strategy that allows the City of Denton to be as transparent as possible. - The use of our calendaring application for schedule tracking will be very useful. - The use of our SFTP will ease data collection and data transfer. - The use of web - meeting will be easier to manage, since participants can multi -task even in the middle of a web - meeting. o For periodic updates, we recommend that a twice a month web - meeting with the HR Department's project manager be carried out. o In as much as project dashboards are excellent tools for putting visibility into the project, a web -based interaction will be highly beneficial as well. This is important since first -hand guidance and advise from the HR Department's project manager will ensure that we as consultants are going in the direction that the City actually wants. o A twice -a -month web -based meeting for at least 1 'h hour each is desired. 2) Communication with Department Heads and Supervisors Our assumption at this point is that the City's Job Descriptions are all current and available for all existing job positions. However, there might be recent changes to job duties that are significant enough that it would require and update of job descriptions. For this reason, we recommend that a communication line among consultants, Department Heads and Supervisors be opened. Other than discussions about job duties, UM Global also recommends that Department Heads and Supervisors be informed about the project. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 We recommend meeting with them once, in the beginning of the project, and once prior to the conclusion of the project. We also recommend providing them with lower -level access to the project dashboard. They can see tasks and update that concern their own department only. It is important that we have the support and buy -in of the Department Heads and Supervisors, especially if we find that it is necessary to change the current salary structures and job classification. 3) Communication with Employees at Large & Message Delivery Method UMGHR will gauge the appropriateness of delivery method that will depend upon the availability of target audiences, levels of seniority, and job classification. These methods can be either one of the following, or a combination of all: • Regularly scheduled Meetings with HR and other Department Heads • Project Dashboard • Town -Hall Meetings with staff level employees (In keeping with the RFP's statement that the City wishes to maintain transparency) • Chevron set up presentations with Supervisors and Managers • One -to -one Interviews with Senior Managers and Executives 4) Communication with and Presentations to Executive Team and Council Members As required by the project, UM Global HR's Principal Consultants will set aside time and dates for presentations and executive updates to both the Executive Team and the Council Members. All materials will be submitted to the HR Department at least 5 days prior to any presentation. 5) Quality Management and Quality Assurance The Principal Consultants of UM Global HR are both SPHR Certified (Senior Professional Human Resources). In fact, one of them is a Certified Quality Management System Auditor. We will provide the City of Denton the following Quality Management and Quality Assurance protocol throughout the project's life cycle. Corrective Action Preventive Action (CAPA) a. Corrective Action As part of our standard project management approach, any feedback from the City regarding this project will be given 100% attention. Questions will be responded to within 1 hour of receipt by email, and 2 hours of receipt by web -based form (can be found in the dashboard). All feedback are recorded for improvements and immediate resolution. Additionally, our corrective action protocol will be visible on our reports when necessary. We typically include this part in the internal equity analysis portion of the project, since it normally involve Federally regulated acts. b. Preventive Action I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 Preventive action will include consultants' strict compliance to the City's standard contractor rules and regulations, as well as observance of Federal Regulations regarding compensation (FLSA, ADA, Title VII, and ADEA). c. Proper Training For Sustainability and Response to Requests for Assistance Before the completion of the project, UMGHR will provide the City of Denton's HR Department all necessary training, manuals, and toolkits to carry on with any new processes, structures, procedures, or programs that we may recommend. We keep tab of HR's self confidence to independently administer our solutions by recording all requests for assistance. All requests for assistance are replied to immediately at no extra costs, 6 (six) months after project completion. UMGHR considers requests for assistance as minor amendments to new processes, structures, procedures, or programs, minor updates to employee data, or follow up questions from employees. I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Ulibarri -Mason Global HR LP (UMGHR) is a human resources and organizational development consulting firm located at 3010 Li Freeway, Suite 1200 Dallas, Texas. UMGHR operates as a limited partnership owned jointly by Dr. Daniel Ulibarri and Ms. Elena Mason, and organized as a State of Texas registered business. We are a Texas HUB company with certification number 1202423821900. We are also a minority owned Small Business Enterprise certified by North Central Texas Regional Certification Agency. The firm was founded in 1994 and renamed in 2004 following Elena Mason's joining. The firm was established with the purpose of offering organizational development consulting, compensation, and human resources methodologies designed for today's thinking and knowledge -based work environments. Since 2004 we have combined our resources, talents and expertise to provide services to colleges and universities, public sector agencies, municipalities, and non - profits. We are financially sound, fully insured with Professional Liability, General Liability, and Worker's Compensation Insurance. Our Firm's Qualifications Experience with municipalities, and other local governments and public agencies: a) City of Globe, Arizona (From 2014 to 2015) For the City of Globe, UMGHR provided job evaluation, classification, and compensation study. We analyzed all the jobs in the following departments: Water Utility Department Public Works Department Recreation Department Library Globe Active Adult Center Besh Bagowah Archeological Park Police Department Planning and Zoning Department Legal Department Fire Department Finance Department Administration Department b) Gila County, Arizona (From 2013 to 2015 with contract renewal) For Gila County, UMGHR provided job evaluation, classification, policy development, internal equity analysis and compensation study. We analyzed all the jobs in the following departments: Assessor Board of Supervisors Clerk of the Board Community Development Community Services Constables County Attorney County Manager Courts Elections Finance Fiduciary Health and Emergency Services Human Resources Library District Public Fiduciary Public Works Recorder School Superintendent Sheriff Treasurer Administration Department `,:. - I r I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 c) Pacific Gas & Electric (PG & E) For PG &E, UMGHR's Principal Consultant, Dr. Daniel Ulibarri served PG &E as the Director of Human Resources, with wider focus. While at PG & E, Dr. Ulibarri handled projects involving compensation study, training and testing program development for PG & E's Revenue Protection department. PG &E is the largest privately own gas and electric company in the United States. d) Coconino County UMGHR Performed job analysis, job description review and salary schedule design for county transportation department (see # 1 above). We performed transition and communication activities to move employees and all functions from a county department to an independent transportation agency with 100% transition of employees and HR functions. e) Northern Arizona Intergovernmental Public Transportation Authority We conducted three projects for NAIPTA under separate contracts in the past five years, all involving compensation structuring, benefits, and variable pay studies. In the course of our engagement we have worked with the Arizona Retirement System (ARS), Northern Arizona Employee Pension and Benefits (NAEPEB) to jumpstart NAIPTA's retirement and health coverage system. f) North Texas Tollway Authority (NTTA) We performed review of job descriptions and compensation salary structure for over 600 exempt and non - exempt employees. Conducted internal equity analysis, FLSA analysis and IT market study, and a targeted market compensation study for IT professional positions. We also conducted a targeted compensation study of statewide IT positions. Results: New -hire strategies and adjustments to placement policies for specific graded IT positions. Identified 11 of 16 IT positions below market midpoint, consistent with IT's concern that certain positions were undervalued, and that the prior market study misgauged the value of these positions in the market. FLSA analysis validated that classifications for all but two non - exempt positions were correct. All exempt positions were correctly classified. Reviewed NTTA's compensation structure and job descriptions for a total of 168 managerial level jobs. Our point- factor analysis indicated the structure was sound and could be further improved by incorporating job worth values into pay strategies. Our internal equity analysis identified 96 positions out of sync with the compensation structure of positions within the same grade. Of these 25, were paid lower than peers of equal job grade, years of experience, or job valuation scores. NTTA Human Resources investigated these positions and made corresponding corrections if needed. g) Dallas Area Rapid Transit System (DART) Three Contracts: (1) comprehensive job analysis, review of job descriptions, job title consolidation, and pay /grade structure review; (2) analysis of career ladder programs, compensation and job alignment; (3) organizational analysis of classification hierarchy, span of control and reduction from 9 to 6 management levels. We conducted a comprehensive Job Description review and point- factor analysis of over 220 job titles, with recommendations for consolidation. The analysis included documenting inconsistencies in job duties and responsibilities for equivalent management titles, and identification of positions with job duties not aligned with DART's compensation structure. ,- I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 We completed a comprehensive review of DART's disparate Career Ladder programs operated by different business units. We provided a procedure and implementation plan for aligning policies and practices for selection and application, with emphasis on bringing business unit compensation practices in -line with each other and with DART's compensation system. This was accomplished with buy -in from line -staff and HR as well as with Legal, Transportation, and Fleet Maintenance business units. Client Name: Alamo Colleges— Five -Year strategic compensation study, including market analysis, peer comparisons, and transition of faculty compensation structure from a step salary schedule to a new range schedule developed by UMGHR, with targeted faculty salary adjustments for seven faculty salary classifications for five colleges: 1) San Antonio College; 2) St. Philips College; 3) Palo Alto College; 4) Northwest Vista College; and 5) Northeast Lakeview College. To create our solution we reviewed compensation policies, practices, and made market comparison against the largest Texas community colleges. Comparison colleges were 12 Texas community colleges and three out -of -state community colleges. Recommendations: Increase credit for prior experience from 3 to 5 years the first year, and to 7 years thereafter to be competitive with the top colleges. Make salary compression adjustment to due to a lack of increases for the last three years. We provided percentage increases per salary classification to target increases where needed, rather than across the board. I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3. Signature Company Date Ulibarri -Mason Global HR LP November 18, 2015 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 s. Bri ef Comp any ory a. Staff size: Twelve: Two General Partners, 1 receptionist, and 9 project based consultant b. Principal business location and other service locations: Dallas, TX c. Primary line of Business: Human Resources Consulting: "Compensation and Classification Research and Analysis" d. Length of time firm has been providing proposed service(s) described in this RFP. Going on 12 Years. Incorporated in Dallas, TX Oct, 2004 e. Number of locations and where proposed services are in use. UM Global HR is located in Dallas, TX. We have provided service and our results are being used in Texas at Houston, San Antonio, Austin, Dallas, Plano, El Paso, Lubbock, and San Angelo. In Arizona at Flagstaff, City of Globe, and Gila County. In Las Vegas and Reno, Nevada. UM Global HR Brief History Ulibarri- Mason Global HR, LP (UMGHR /UM Global HR) is a full service HR consulting firm located in Dallas, Texas. Founded in 2004, our purpose is to provide senior -level strategic human resources compensation and job classification consulting research and services to public organizations. UM Global HR is a minority owned and Texas HUB certified small business. We focus on selected projects for which we think we can provide added value and significant benefits to the organization, its human resource capital, and compensation strategies. Because we are small we focus on one to three projects a year, or fewer if the project is multiyear, full service (Salary Plan, Job Classification, Job Descriptions and Salary survey), or involves more than 600 employees. Because of our prior work in HR Transitions, mergers, and acquisitions in which fast turnarounds are necessary, we have developed skills in conducting compensation studies in a short amount of time and thereby are experienced with completing projects with 3 to 6 month timeframes. Since 2004 we have conducted several compensation and benefits studies for both public and private sectors with the largest clients representing Texas Tech University System with over 9,000 employees, two Universities, Health Sciences Centers and hospitals, an academic university, and correctional health facilities and Alamo Colleges representing five separate colleges over a 3 to 5 years period with two contract extensions. We also performed compensation, classification and market studies for NTTA, DART, University of Houston, Downtown, Alamo Colleges, with additional compensation studies for middle size organizations with less then 1,000 employees as well as several smaller municipalities (city and county) and state government agencies in Arizona and Nevada. Jobs include utility, medical, educational, public transportation, city and county governments as well as university staff and faculty studies. We focus on identifying our client's primary challenges and problems (both real and imagined) and on conducting rigorous research studies with significant client input and involvement (who knows the issues better ?), to develop unique solutions specific to the organization. We do not use off the shelf solutions as each client's situation is different and thus requires different solutions. Our approach and method for implementing compensation strategy are sensitive to external factors such as: size of population served (tax- base), direct local and regional competition, 9,,. I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 organizational objectives, and community perceptions, as well as available resources. We are also cognizant of internal issues that typically come from employee perceptions on equity, policies on internal career movement, promotion, demotion, initial placement, and structurally induced salary compression. With external and internal drivers taken into account, we provide sustainable models and easy to administer processes and procedures that we tailor -make to address our clients' individual unique needs. We provide access to our cloud -based "Statistical Job Evaluation and Compensation System" (SJECS); developed by the partners of UM Global HR for transparent and objective evaluation of jobs. Finally, we provide a cognitively and quantitative based system for evaluating and comparing jobs based on the combination of cognitive and skills -based requirements for comparing and measuring job value. This proprietary system was developed by Cognitive Psychologist, Dr. Daniel Ulibarri, President, and Ms. Elena Kwong Mason, Sr. Vice President of UM Global HR and is especially suited for today's technology and knowledge based positions that require thinking and problem solving in the workplace. Names, titles, experience with this type of project, and period of service with the firm. Project Lead: Daniel Ulibarri, PhD /SPHR, President and Partner of UM Global HR Dr. Ulibarri has over 25 years experience in human resources, including 5 years in senior HR positions at Pacific Gas & Electric, Co, in San Francisco, the largest privately own utility in the Unite States. Dr. Ulibarri graduated from the University of California, Berkeley and was International HR Vice President for Affiliated Computer Services (now Xerox) in charge of HR in Europe, Middle East, Asia Pacific, Mexico, Central America, and Canada. Dan has overseen all UM Global HR projects as project lead and primary contact. Dr. Ulibarri is a Managing Partner of UM Global HR and is involve in every project as Principal and Project Lead. We do not use subordinate staff. Dr. Ulibarri's expertise is on statistical analysis, cognitive psychology, and compensation research and analysis. Project Co -Lead: Elena Kwong Mason, CCP /SPHR, Sr. Vice President and Partner of UM Global HR Ms. Mason has over 20 years in international HR, compensation and classification, and as project co- lead on all of UM Global HR projects. Ms. Mason is co -owner and General Partner of UM Global HR since 2004. Ms. Mason's principal expertise is total compensation, job classification, salary plan evaluation and development, market studies and business analysis. Elena graduated from the University of Hong Kong in Business and Human Resources. She has been a Certified Compensation Professional for more than 10 years and is Quality Assurance (RABQSA) Certified Consultant, expert in ISO9000. Ms. Mason oversees all salary plan evaluations and development as well as market analysis and research. She is particularly adept at obtaining benchmark organization participation as well as employee census so that actual databases are used in all of our analysis. She is familiar with all aspects of compensation, salary structure, and classification best practices, as well as with published and private databases locally and nationally. r..= I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 Jim Litrownik, MA, UM Global HR Senior Analyst and HR Consultant Jim has over 25 years experience in compensation and classification research. He served as senior research analysts for the University of California System in charge of compensation for the 10 universities in the California system, including UC Berkeley, UCLA, UC San Diego, UC San Francisco, and UC Sacramento to name a few. Now retired, Jim has worked with UM Global HR for over 5 years conducting job evaluation analysis for the UHD, TTUS, Gila County Government, Nevada Community Colleges in Las Vegas and Reno. A fellow graduate of UC Berkeley with an MA in cognitive development and Research Statistics, he has worked with Dr. Ulibarri and Ms. Mason on developing unique solutions for all our clients in the past five years. Joyce Howell, BA /PHR, UM Global HR, Senior Compensation and Benefits Consultant Ms. Joyce Howell has over 25 years experience in compensation and classification research in the public and private sector, including the City of Irving and Dallas County. Joyce served as HR Manager of Compensation and Classification at Affiliated Computer Services in Dallas, TX. She has worked with Dan and Elena for over 8 years doing compensation and benefit analysis, job analysis, job descriptions, FLSA and total compensation and benefits work. Over the past five years Joyce worked on UM Global HR projects for UHD, TTUS, NTTA, and DART. She has been a consultant with UM Global HR, exclusively since 2011. GE:1IM1 F1711i' A brief statement of the availability of each designated personnel to undertake the proposed project Please include a statement of where the actual work will be performed (e.g., on -site, off -site, or a combination). UM Global HR certifies that Dr. Daniel Ulibarri and Elena Mason will be assigned to the project at 100% for the duration of the project. Jim Litrownik and Joyce Howell are assigned up to 50% (or more if needed) on a project /task basis. Worked performed by UM Global HR will be performed in a combination of off -site and on -site as needed to carry out the duties of the project. UM Global HR is located 28 miles south of the City of Denton at the corner of (1-34W & 1- 635W). It is a direct route to the City of Denton. Additionally, Dan Ulibarri Elena Mason reside in Lewisville, TX just 19 miles from the City and can be available on- site as requested. Dr. Ulibarri and Ms. Mason will conduct all interviews, meetings and presentations (with Joyce Howell) on -site. 9,,. Ili6�ifi7i7xil�l�.. III* s: 3L' 3Cl�aT *�tii *:1rC�!„3►��1I1�I�r1�1I1 "3►aI17I17►I�f i �' f�arXdrfX r rr� �r� LIM Global i LP 3030 1 IIJ reeway, Suite 3200, . Dallas, fX 75234 Iel 575 535 63.83 In compliance with the City of Denton's Scope of Work document, we describe our Work Plan and Methodology below. We have 5 basic steps that cover all the project tasks listed in the RFP document. These steps resonate with the City's desired sequence of events. These include: (1) Jump - Start, (2) Due Diligence (3) Strategy Development & Communication Plan (4) Implementation Planning (5) Implementation The purpose of the due diligence, and steps 3 & 4 is to describe the scope and approach, determine the resources needed, and create a high -level plan for implementation. These phases set the stage for the implementation of the project. Input, feedback, and approvals are solicited largely from the City's Project Manager as well as other relevant stakeholders, such as the City's Leadership. The manner in which issues and scope changes will be communicated and managed is defined in the communication planning stage. Steps 1 through 4, focus on needs and gaps analysis while Step 5 focuses on implementation. Figure 1: PROJECT ONE WORK PLAN GLOBAL HIR PROJECT EXECUTION STEPS �IIIIII Illlll�i� III��II�I IIIIII Illll�llillsd� w � ,. � � C � Team Introduction and Collect Gity Data and Customize Project Dashboard & Meetins with Dept. Heads, g Discussions an Expected Project Kuck -off ,Kick Off Meetings Employee Census Communication Materials ko City Managers, Supervisors and Outcomes ...... of Denton conduct Perception Audit Review Current Compensation Interview with HR Review of Records of If Needed, Formulate New and Communicate Findings to Philosophy & Department Recruitment, Retention, Recommend a New Philosophy Provide Drafts for Feedback other Key Employees Objectives Internal Equity & Objectives (upon approval by HR) Review & Develop a List of Peer Determine if Salary Define Qualifying Criteria For Selection of Peers. Confirm Develop and Submit Analyze Market Organizations in Public Survey is Needed or Peers List, Add or Subtract Requests for Public Data and Private Sectors Existing Data Would Awarding to Criteria Records. Collect and Suffice tabulate Data ,... Review, Analyze Conduct Structural Audit - Internal Equity Analysis & Recommend Industry- specific job Confirm List of Peer Midpoint to Midpoint - Determine Internal Value Pay Action &Impact Best Pay comparisons Organizations Interquartile Ranges - Prepare Reports Analysis Practices CSGR Review and Review the Current Job Review Policies on Conduct Internal Equity Analyze Actual Hierarchical System Promotion and Hiring, Analysis Provide Findings and Recommend Changes to Pay Practices Evaluate Current Pay Review Compensation - Determine Causes of Documentation. Pay Structures Grades & Structure Structures Compression Issues Recommend Evaluate wage & grade Document Findings and Develop and Submit Adjustments to Conduct Wage & Salary Verify Correctness of hierarchical integrity as o Changes. Recommendations (Be it the Existing Pay Structure Audit Data Collected indicated by job grade alignment vide E lanation Provide Exp Pr a new structure, or just a Structures ........ with complexity levels change) Recommend Determine if the Current Structure will Support Conduct Job Analysis Recommend Job Classification Provide work -plan for implementing new Ensure that all changes New Wage( Changes or can be Hierarchy for all existing jab structures and pay are compliant with Salary/ Structure Integrated classifications philosophy Federal rules Review all Job Identify and Validate Provide detailed Job Description Descriptions to ensure "Essential" Elements Assist with Creations of Job documentation and training Submit New Job Compliance Compliance with Federal and Predominant Duty Descriptions for Classified for the on -going Descriptions for for with Federal & State Employment and Validate with Positions that Do Not Have one maintenance of the positions that do not have and State Laws Legislation Supervisors. Identify classification structure one ADA, FLSA, issues system Communication Meetings with HR of Results Department, Department Validation of Data On Provide Initial Report on Internal Provide Financial Impact Presentations Regarding Financial Heads, Managers, Gaps and Needs Equity and Recommendations Comparing Option 1 or Implementation Roadmap Impact Supervisors For an Implementation Strategy Option 2 with Financial Impact I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i 9 • UM Global HR LP 5030 1 IrJ i,eewar, Suite 3.200, I) llun, fX 75234 ful 5�75 535 6383 Figure 2: PROJECT TWO WORK PLAN M GLOBAL PROJECT EXECUTION STEPS IrP Re EKI Fg Determine ppp° r mi*ne48' -s sux NaF4H IiA Md84v�FA W.N �4¢ Wd 4�p' w � �� kN4M ±e�eXo aril Sn uahuraut P"4 �aM'N�4A IMY.t U" M�4Ak9�o R'dnntwmaay �ampaaairsatmrs in i�'urh�kic N'W s existence of sumllar Rarxaads" lydact amt a�fl�l and p a Sectors � as the Oty a rag t d r duulate a Rave ltenetrunantr pndu ay# spa^a h lr txtra at Est Verdy F serduaai Dub a, P ititre; & Par" myam dy uml a Requirements, t �. Reoomuerud httarke Demands ha s -- W W ............... ......... ........, 'Wyrlta uummaay Summary dote l eschp tax aaaaaah job VerffyEssential dustless aaaiy t�usatttuu gluon Descriptions to he surveyed Requirements, Sata+rres loved Survey In dude Items such as "Other laude baSic c nropeasadon items Su ney wffl be Weti4xised and Template Foram of r s ry for the can be extendable pew SUMY ontaot Subunit Open Records Requests Orwhi FdIpw up with Survey to htilc Entices to S011oit Partldpan and Secure ph" up both by p Dead nounsl Submit lmetda to, i'rsvata Participation i their ratan O an �al ens in the Wst of ry r uuallaied Pears Reveery ail doh Vertiy Salary Data In Review hate fag Descriptions to ensure terms ad years of Rums pracbce tests under vanous " Reliability and Compwiance mir Federal incumbency. Length of scenafios to determine ways to Validity d State Emoyment Incumbency repoul data ,,,, LeRisialion ... ... riffum pay . alts must mcdude Tabulate tual average„ median VaRadtfloru of data r'cu i� p and provide Market Develop Sulmmary and Dishibuute Copy of Results Repoa^t Results pay, e°aS miau rate, qup Gaps and deeds Composite ila�talp la of Survey to Participating midpoint, and rg�,max, lts. Organizations 9 • I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 !; :,, i In keeping with the Scope of Work and to assist the City of Denton in addressing the challenges described on page 7, UMGHR proposes its unique and proprietary methodology for all the major tasks outlined in the Scope of Work. The methodology centers around the following critical areas: 1. Strong Communication Strategy 2. Salary Structure Audit 3. Career Ladder Reviews 4. Job Analysis and Job Evaluation 5. Communication Tools In our view, the challenges as elucidated on page 7 are intuitive and are the direct result of more than just the career ladder levels (or rungs) structural problems. They are also the direct result of increasingly high demand for skills and talents that the labor market is willing to increase pay rates to obtain such skills and talents. Internally, several other areas also come into play that can and often contribute to compression. Some of these other internal factors are: Policy on hiring, policy on training, policy on promotion, salary placement for new hires, policy on grade differentials, policy on transfers, policy on base - building merit pay, and practices and culture. Compression issues can quickly turn into inversion issues (which is a much serious case), particularly if a specific department has had vacant positions for so long, that it must hire the next available suitable candidate at a higher rate and thereby rendering the salaries of those whose incumbency and seniority are longer at a lower rate. UMGHR is proposing to the City of Denton, a methodology that is well rounded, addresses compression issues from structural, policy, and systemic points of view. We provide highly defensible data - intensive results that many public organizations that we have helped in the past still utilize today. 1.1. Review Current Compensation Philosophy and Objectives Our review process of the City of Denton's Compensation Philosophy, Objectives, and Compensation Strategy will focus on analyzing the following records: a. Historical turnover rates per department since 2007 (the year the salary plans were implemented) b. Exit interview records (when available) c. Communication delivery method of information pertaining to Total Rewards d. Review records for training and certification e. Review records for apprenticeship f. Employee perceptions (to be obtained through Managers, or Department Heads) g. Interviews with selected employees, supervisors from each pay plan h. Review of past compensation studies and reports leading to the current pay plans. r..- I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Expected Results The next course of action will depend largely on what we will conclude from analyzing the data above. Additionally, the results of our internal and external equity study will also inform the need to revise or re -write the City's compensation philosophy, objectives and strategy. A preponderance of compression cases as well as lagging market position for "hard -to -fill" jobs (e.g. Electric / Energy Market group) will trigger a revision or a complete re -write of compensation philosophy, objectives, and strategy. 1.2. Review and Analyze Market Data for the Career Ladder Pay Plans We will look at the data already available at the City and work with the City to determine if a full - scale market study is necessary. Generally, we will see the report date of the market database already at hand and discuss if the City is agreeable to age the data. We can then supplement the existing salary data with recent ones, depending on the Nor number of incumbents surveyed for a particular job. 1.3. Review, Analyze, and Recommend "Best Practice" Pay Practices With various industries that are represented in full - service cities in mind, UMGHR will first conduct a salary structure audit of all the Career Ladder Pay Structures. However, based on our initial look and based on the information given by the RFP document the following are our professional opinion: a. The range spreads for the lowest level of the Career Ladders for Electric General and General are very narrow at only 31 %. b. Along the same note, the highest level's range spread is only 50% c. These very narrow spreads could cause several employees with long -term incumbency (tenure) to top -out very quickly. Especially if the incumbent stays in the same job position for very long. d. Without the benefits of knowing the City's policy for promotion and advancement through the career ladder, we assume that incumbents move through the ladder by virtue of incumbency or tenure. e. Promotion or movement through pay grades (i.e. Career Ladder Pay Grades) by virtue of years of service alone is not a very good strategy, particularly if an organization has not defined initial placement strategy, response to labor demands, and if an organization has not placed importance on experience gained inside while on the job. UMGHR's Method For Completing This Task With various industries that are represented in full - service cities in mind, UMGHR will first conduct a salary structure audit of all the Career Ladder Pay Structures. i. We will only gather data from organizations that the City confirmed and qualified as peers. We will review the current structures' vertical and horizontal lines. The vertical line will consist of midpoint -to- midpoint progression and range differentials between levels in the same Career Ladder. The horizontal line will consist of interquartile range, percent progression between pay in the same level. The objective is to look for uniformity and inconsistency. If there are more inconsistency than uniformity then this can be another reason for building a business case towards updating the salary structures. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 1.4 Review and Analyze Actual Pay Practices (including a compa ratio analysis) We will conduct an Internal Equity Analysis. Our focus in this area will be on Compounded Salary Growth Rate per employee, average differentials between supervisors and direct reports, and salaries based on the complexity of jobs as well as years of service or incumbency. Additionally, we will provide the City with three types of compa -ratio Analysis. i. Individual compa- ratio, which compares the incumbent's salary against his or her own department's salary average. ii. Comparison of an incumbent's salary against other incumbents in the same job title. iii. The third compa -ratio analysis will compare an incumbent's salary against other jobs in the same level. 1.5 Make Recommendations for Adjustments to City's Wage /Salary Structures The results of our work in 1.3 and 1.4 will help in designing alternative structures, since the analyses already completed in 1.3 and 1.4 can reveal areas that we need to address through proper structuring. Option 1 Our recommendations under Option 1 will include our findings and rationale for recommending alternative structures and will take into account the following: • Base pay line policy: UMGHR will utilize best practices in establishing the base pay line policy. • We will use the midpoint rates for each career ladder as the base line for potentially updating or developing alternatives. • Geometric midpoint to midpoint progression per grade • Differences in salaries between supervisors and direct reports • At least three (3) financial models will be provided to the City • The models will detail the recommended changes to the structure, the strategy for implementation, as well as the financial impact associated with any adjustments to salaries. Option 2 Under option 2, we will provide the City with alternative (new) structures. We will determine if the City's current class system will support or can be integrated with our recommended structures. • We will conduct job analysis and recommend a job classification and hierarchy for all classifications • We will review all existing job descriptions for FLSA Compliance • We will assist in the creation o job descriptions that do not have one • For self sufficiency, we will provide the City with manuals and training •,:.- I • I��i7i7xil�l�.. II11�* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eeway, Suite 3.200, I)allun, fX 75234 ful 972 535 6383 `Kii s poil"flon of tt II G Ilht IIR's Ip it Ilp s a III c n t aC Iii s Ip it IIp il, Iii 1„w ty 11rn aC te ili � �� s lii s p a ur.t f a � 1�� 1 I �1�rour' °tut Deer° t' III T`It' IH 2 urne' llhort6ogy Conduct a job analysis and recommend job classifications and hierarchy for all existing job classifications. LIM Global HR's technical review of the City of Denton's pay plan will include a hierarchical analysis and comparison of Career Ladders and job class placement in the pay plan. This tasks consists: 1) an external structural comparison against market metrics, policies, and job pay values; 2) an internal structural analysis of pay grades and job placement within pay grades; and 3) an internal structural analysis of actual data with "pay plan" range values, examined by career plans. To better understand the City's pay plans, LIM Global HR will conduct a comprehensive review of each pay plans using our proprietary "Levels of Work" structural evaluation methodology. LIM Global uses this hierarchical analysis methodology to quantify jobs into 21 levels of increasing work complexity based on an assessment of the job's predominant duty. This methodology essentially converts Denton jobs and pay plans into a common metric on which they can be hierarchically compared. Once this is done, we can use the data to evaluate the questions and concerns as outlined in the RFP. This includes compression, internal equity, placement in pay grade ranges (range penetration), as well as job grade placement. This is important in organizations with separate pay plans and grade assignments. For example, the City of Denton' General Pay Plan" tells us that there is a Go G02 1' 1 6 6 relationship between the seven (7) career ladders and G03 14 14 job grades as shown in the Job Grade by Career Ladder G05 37 2s 37 table on the right. Job grades are aligned with a specific G06 33 33 a career ladder. In other words, Business Operations — G07 G08 42 42 34 34 Ladder 1 is made up of "odd" number job in Grades 1 G09 13 13 through Grade 9, and Technical Operations - Career G010 3 26 26 Ladder 2 is made up of even numbered jobs in Grades G10S 3 3 2 through 10. This is true for all grades with the G13 17 8 187 exception of Grade 16, 165, and 16M, in which there G13S 5 5 are jobs in two different career ladders. G14 a 4 G14S 4 4 This structure would appear to present problems of the G15 24 24 G15M 5 5 type specified in the RFP since vertical movement G15S 14 14 through the grades within the same career ladder G16 18 9 27 G16M 14 12 26 requires skipping a grade. Thus, the traditional midpoint G16S 6 2 8 to midpoint comparisons (i.e., grade to next grade) is G17 4 4 not meaningful. Moreover it is likely that this hierarchy G17S 13 10 3 contributes both to internal equity problems as well as to G18 6 6 salary compression. G18M 4 4 G19 7 7 Example Evaluation of the General Pay Plan G19M 6 6 Hierarchical Structure G20 G21 1 1 10 10 "Job Complexity Level" is a framework for organizing G23M 6 6 1 1 jobs into hierarchical levels of difficulty based on the Total 107 3 125 3 33 43 65 47 17 443 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 complexity of the work that has to be performed. "I° Ilhis I portioin of LNGIHR's I proposal cointa ii in s I r I Imriii �� t Ilmaterials. "I his I portioin is Imp: of our OF'"[ OM 2 IIrne'llh oddl • Jobs that are more complex take longer to complete, require more decision - making, present more unknowns, present more ambiguity, and require more alternative plans. • Jobs can be grouped into "time horizons" of how long it takes before the work product is completed and can be evaluated • The time horizon is the longest time in which a worker has to make decisions before receiving input or feedback from their supervisor or client • Work complexity is based on cognitive research and adult learning theory The Job Complexity Level (JCL) system allows jobs to be quantified into hierarchical levels based on their level of work complexity. It is an objective and quantitative method used to match jobs for internal equity analysis and market comparisons, developed by Dr. Daniel Ulibarri, President of UM Global HR. The uniqueness of this methodology is that jobs in any discipline, content area, pay plan, or career ladder can be quantified so that job grade placement, internal equity and market comparisons can be made. UM Global HR's Job Complexity Level and Rank (JCL +R): JCL is the classification of a job's duties into one of seven levels of complexity defined by: • The time it takes to complete the longest task (time horizon) in which the individual uses their own discretion to produce an output without feedback from a supervisor or client • The nature of the work (manual, operational, coordinating, supervisory, tactical operational, tactical strategic, strategic) JCL +R is the ranking of jobs within each of the seven levels as Low, Medium, or High. JCL +R is based on the following elements in the job: • The education, training, experience, and certifications required of the job • The nature and type of office to which the position reports (for example, supervisor, manager, director, executive, judicial, etc.) • We use a classification system as well as a point- factor system to validate ranking within a complexity level. UM Global HR's 14 Factor, On -line Point Factor System And Job Complexity We use a comprehensive point factor job analysis system developed by Elena Mason, Sr. Vice President of UMGHR. The point- factor system allows forjobs within the same Level of Work complexity to be differentiated based on knowledge, skills and ability, experience, education and other ADAand FLSA factors. It is used to further validate the differentiation of jobs within a level of work complexity into Low, Medium and High ranks. UM Global HR uses the organizations, job descriptions and our automated SJECS (Statistical Job Evaluation Compensation System) to score each job. •,,. I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i JIM Global i LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 "I Ilhis I poii of L I IIH IR's I proposal coint: iii un , I Ir I Ii m t e Ii "I Ilhis I poii iii Is Imp: of ouir OF'"[ lu OM oddl UM Global HR's 14 Factors for Job Evaluation (These are minimum iob reauirements): Factors 1 - 4 Factors 5 - 8 Factors 9-12 Factors 13-14 (1) Knowledge (5) Supervision Given (9) Working Conditions (13) Supervision Received (2) Experience (6) Written Communication (10) Customer Interactions (14) Internal Interactions (3) Consequences of (7) Oral Communication (11) Professional Errors Credentials (4) Formal Education (8) Project Authority (12) Budget Res onsibilities In the event job descriptions are not available or are not up -to -date, SJECs can be used to create a new or revised job description. If it is necessary to develop, revise or update job descriptions, the SJECS system allows for this. The result of combing job complexity level and point factor scores is the conversion of each job's job duties into one of 21 cells in a 3 by 7 Complexity level rank matrix as shown below UM Global HR Job Complexity Leveling and Ranking JCLR° JOB COMPLEXITY LEVEL Evaluation of City of Denton General Pay Plan Job Classifications in G01 through G14S We used on -line job descriptions to conduct a preliminary evaluation of 213 City of Denton jobs in Grades G01 through G14S in the General Pay Plan to illustrate how the methodology works. The results verifv and validate the hierarchical structure of the General Pav Plan as well as the iob arade placement for Ladders 1 and 2 for grades 1 to 14. The table below shows the number of City of Denton job titles in each grade that were rated at each JCLR. Highlighted cells indicate the number of jobs aligned with other jobs in their same grade. Boxed cells indicate the number of positions that are not aligned with other jobs in the same grade. For example, there are 14 job titles in G03. Twelve jobs are rated level 1.2, and two jobs are rated 1.3. Almost all the jobs in Grade 03 are level 1.2, thus Grade 03 is of level 1.2 job complexity. Any job in Grade 03 that is not 1.2 is flagged for review, which could mean updating job duties to align with other jobs in the Grade 03 reclassification, or red - lining the position from all but merit increases. 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 "I° Ilhis I portioin of LNGIHR's I proposal cointa ii in s I r I Imriii �� t Ilmaterials. "I his I portioin is Imp: of our OF'"[ OM 2 IIrne'llh oddl Job Classification of City of Denton Jobs by Grade and Job Complexity Level© G01 1 G02 F1 4 G03 12 2 G04 1 25 G05 31 2 G06 2 30 G07 32 1 G08 2 21 G09 8 0 G09S 3 G10 7 G10S G11 7 G13 G14 G14S Count 2 17 60 66 30 18 3 11 4 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 4 5 14 26 33 32 33 23 9 3 7 1 7 11 4 4 .................... 213 Note that Grade 02 is also level 1.2 with 4 of 5 jobs at that level. Thus, we can say that Grade 02 (Technical Operations - Ladder 2) and Grade 03 (Business Operations Ladder - 1) are equivalent. Similarly, Grades 04 (Technical Operations - Ladder 2) and 05 (Business Operations Ladder - 1) are equivalent at level 1.3. We also found 2 jobs in Grade 05 (Business Operations Ladder - 1) that appear to be in a higher grade since they were rated higher. Since they are in the Business Operations Ladder — 1, we would assume they would be moved, i.e., reclassified (if the rating is verified) to Grade 07. Herein lies another potential problem with the pay structure. Reclassification of jobs in a career ladder means movement up two grades. In most organizations move is limited to one grade. As part of our analysis we will have to examine merging grades between the ladders or separating the Career Ladder I jobs and Career Ladder 2 jobs into separate salary schedules with similar grades. Under the current system, even though G02 is equivalent to G03, the entry level salary, salary range, and midpoints are different. We would want to examine the market data for these positions to see if this structure is still supported. If so, an argument could be made for separate salary plans, otherwise, merging of plans and grades may be a solution. The current system, produces both internal equity problems and compression problems. We have used this methodology at several city, county, university, community college and health agencies in Texas, Nevada, and Arizona to evaluate job grade alignment. At Texas Tech University System we conducted a job /grade classification analysis of over 9,000 positions to align job titles with grade levels in multiple pay plans (i.e., for the University, their Health Sciences 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 Centers in El Paso and Lubbock, Correctional Medical Health Care Services and Angelo State University). In general, we find that up to 10% misalignment, so the preliminary results for the City of Denton are very good indeed at 5.6% (12 = 213). The interesting result of this preliminary analysis (we evaluated on -line job descriptions) is that it appears to support the integrity of the City of Denton's Salary Plan, Career Ladder and job classifications. However, as you can see from the table, we did flag some jobs for review of job descriptions and grade alignment. The basic principle is that jobs in the same pay grade should be of the same level of complexity. Deviations from these expectations are an indication that the pay plan's hierarchical job structure is not aligned and that jobs are in incorrect pay grades. This approach is consistent with today's emphasis on knowledge work, which is increasingly defined by the jobs level of thinking complexity, by recognition of the individual's contribution to the job, and the need for pay flexibility due to individual performance, geographic distinctions, hard to fill positions, or other factors that demand pay variations. The alternative is situation normal— where new job titles and embellished job descriptions are used to artificially justify higher pay. 1.6 Address range penetration compression issues between new hires and more tenured employees and make recommendations for resolution Our work in this area will focus on reviewing and documenting parts of policies in hiring, promotion, career ladder mobility. The results of tasks 1.2, 1.3, and 1.4 will once again, be used for this purpose. Structural integrity in the form of range spreads, level to level progression, compa- ratios, as well as midpoint differentials between supervisors and direct - reports will be analyzed and reported. 1.7 Conduct financial impact analysis of implementing adjustments (Option 1) or new structure (Option 2) and make recommendations for alternatives. As customary to us, we will provide the City with 3 financial impact models. Scenarios can be configured to determine the amount and size of budgetary change due to changes in salary structures. 1.8 Make recommendations for other compensation options (other than base pay) and cash incentives that are compliant with Federal and State laws and can be sustained by a municipality. As mandated by the Scope of Work, we will include in the survey a question that is designed to obtain information regarding pay, other than base pay and cash incentives. 1.9 Provide consulting services for administration of our compensation plan on an ad hoc basis. If this is not included as part of the compensation services pricing, please include an hourly rate for such services. 9,,. I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i JIM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 Provide an estimated timeline to complete the proposed work. Include the total number and types of meetings anticipated by the consultant that will affect the various groups of the City (Human Resources, management team, etc.) during the course of the work. Also include the number of hours anticipated of the City staff. 9,,. Types of Total Number of Project From To Meetings Number Involve Hours Each Meeting Project One Jan April 2016 2016 Kick -off Meetings 1 time Management 1 hour In Person Team, HR Web- Meeting 4 times HR Updates Project 2 separate Managers, Announcement occasions, 1 Supervisors 1 hour s, Depends on Depends on Job Description the number of Managers, the number of Reviews missing Job Supervisors missing Job Descriptions Descriptions Presentation with 1 Executive 1 hour Q &A Presentation with 1 Council Members 1 hour Q &A 9,,. Types of Total Number of Project From To Meetings Number Involve Hours Each Meeting Project Two March April 2016 2016 Web- Meeting 4 times HR 1 hour Updates 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►aI17I17►I�] i UM Global H LP 3030 1 ItJ i,eewar, Suite 3200, . I)allun, fX 75234 rul 5�75 515 6383 The total estimated cost was determined according to the format of the excel pricing sheet. To get project estimates for Project 1 and Project 2, we estimated the number of hours that would be required for each of the tasks specified in the RFP for Project I and for Project 2 and costed them out at a rate of $150 per hour, which includes all overhead and expenses. The costs were determined as follows: Project 1 1.1 Review current compensation philosophy and objectives to determine if they address the City's recruitment, retention, and internal /external equity desires. If needed, formulate and recommend a new philosophy and compensation objectives that are easy to communicate to City Council, management, and employees. 1.2 Review and analyze market data for assessment of competitiveness of pay ranges for the General Career Ladder, Technology Services Career Ladder, the Electric Career Ladder, Electric Energy Market pay ranges, and the Electric Craft pay plan. This may include conducting a salary survey as outlined in "Project 2" or it may include an assessment of data readily available to the Consultant. The City will need to approve any data used by the Consultant. 1.3 Review, analyze, and recommend "best practice" pay practices. When determining "best practice" pay practices, the consultant should be mindful of the various industries represented in a full- service City 1.4 Review and analyze actual pay practices within our organization (including a compa ratio analysis). The City will submit raw data for the consultant to compile. 1.5 Make recommendations for adjustments to our wage /salary structures based on analysis of the aforementioned. Recommendations should address compression issues between supervisors and subordinates. Option 1: Recommend adjustments to the existing pay structures. With option 1, the Consultant shall: 1.5.1 State the change(s) to be made 1.5.2 State the basis for the change(s) Option 1 Total Hours Cost 40 $6,000 120 $18,000 50 $7,500 60 $9,000 40 $6,000 60 $9,000 438 4WXX$57,947.40 The total hours for Project 1, Option 1 also includes hours from Option 2 tasks that will have to be completed under Option 1 but are not listed as such in the RFP. These are: 1.5.3 Determine if the City's current classification system will support or can be integrated with the recommended compensation structures. (20 hours) 1.5.6 Review existing job descriptions to ensure compliance with Federal and State employment legislations. (24 hours) 1.5.7 Assist with creation of job descriptions for classified positions that do not have one. (24 hours). This could change if the City determines that existing job descriptions need to be revised or updated. Our cost estimate is based on the number of job descriptions we noted were missing from City of Denton HR website. If the city believes these tasks should not be included in Project 1, then we would subtract 68 hours from Project 1, Option 1's total hours of 438 to reduce it to 370 and a Project 1, Option 1 cost of $55,501 ** Doesn't include bundling and BAFO pricing `.r- • I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 The pricing for Option 2 incorporates tasks 1.1 to 1.5 and adds the following tasks as specified for Option 2 in the RFP. Option 2: Recommend new wage /salary structures. With option 2, the Consultant shall: 1.5.3 Determine if the City's current classification system will support or can be integrated with the recommended compensation structures. 1.5.4 If required, the Consultant shall provide a work plan and recommendations for a new or alternative job classification structure, philosophy, and procedures that will account for internal and external equity, organizational reporting relationships, and the market salary position of jobs. Any classification system shall comply with all Federal and State employment legislations. 1.5.5 Conduct a job analysis and recommend job classifications and hierarchy for all existing job classifications. 1.5.6 Review existing job descriptions to ensure compliance with Federal and State employment legislations. 1.5.7 Assist with creation of job descriptions for classified positions that do not have one. 1.5.8 Provide detailed documentation and training for the on -going maintenance of the classification structure system. 1.6 Address range penetration compression issues between new hires and more tenured employees and make recommendations for resolution; 1.7 Conduct financial impact analysis of implementing adjustments (Option 1) or new structure (Option 2) and make recommendations for alternatives. 1.8 Make recommendations for other compensation options (other than base pay) and cash incentives that are compliant with Federal and State laws and can be sustained by a municipality. Option 2 Total Hours Cost 20 $3,000 32 $4,800 40 $6,000 24 $3,600 24 $3,600 32 $4,800 24 $3,600 40 $6,000 40 $6,000 586 ;g $77,527.80 The total hours includes Project 1 tasks 1.1 to 1.5, which total 378 hours, which makes Option 2 hours estimated at 208 + 378. 1.9 LIM Global HR will provide consulting services for administration of the compensation plan on an ad hoc basis at a rate of $150 per hour per senior consultant. Hours would be negotiated or determined by the City. Project 2 Detailed Costs LIM Global HR costed out Project 2 in the same manner. First we conservatively estimated the number of hours needed to perform the tasks listed under Project 2 in the RFP. We then costed these out at a rate of $150 per hour. (see next page) r..- II1>i•7:7'*liirl� � � ' III7 �* s: 3L' 3Cl �aT *>�tii *:1�C�!„3►��1I1�I�i1�1I1 " 3►aI17I17►I�t i UM Global H LP 3030 1 ItJ i,eewutr, Suite 3200, . I)allun, fX 75234 fcl 575 515 6383 Project 2: Wage /Salary Survey 2.1 Review existing benchmark organizations and recommend changes as necessary (the City wants to include public and private sector data, as appropriate). 2.2 Review existing benchmark positions and recommend changes as necessary. 2.3 Write summary descriptions for each of the positions to be surveyed. 2.4 Develop survey template to be sent to each employer being asked to participate in the survey. 2.5 Survey should include questions regarding other forms of compensation to ensure that we capture all forms of cash rewards /incentives. 2.6 Contact organizations to solicit participation in survey. 2.7 Once the survey is distributed electronically, follow up frequently with each employer to remind them of the need to complete the survey by the prescribed deadline and to answer any of their questions. This continued follow up is needed to ensure the maximum number of respondents and the reliability and validity of the results. 2.8 Review data and following up on anomalies to ensure data is not skewed. 2.9 Tabulate and report results (electronically) for each of the surveyed positions and benefit information. At a minimum, results should include actual average, median pay, average minimum rate, average midpoint, and average maximum rate. A comparison should be made comparing actual average pay to Denton's actual average pay; midpoint to midpoint; and actual average pay to Denton's midpoint. 2.10 Generate a summary report of the highlights of the survey and any major findings. This report will need to be delivered electronically to the City. Hard copies should also be available if requested by the City. 2.11 Distribute survey results electronically to participating organizations. Total Project 2 The total cost for the project is as follows Project 1, Option 1 plus Project 2 is XXM $92,507.40 Project 1, Option 2 plus Project 2 is Mk ,29W $112,087.80 These figures do not include ad hoc support hours at $150 per hour Hours Cost 24 $3,600 24 $3,600 32 $4,800 20 $3,000 0 $0 16 $2,400 24 $3,600 40 $6,000 32 $4,800 32 $4,800 12 $1,800 256 `X $34,560 �'�t e's�� r e' e' _ s R �= s �a a a•se - s� •E MN `.r- ' • I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 fe 5�75 535 6383 A list of relevant projects completed by the firm. A list of other governmental /institutional projects completed by the firm. List of W Global HR Projects and Staff Participation Organization Project Title Organization Type Northern Az. Inter -gov. Public Trans. Comprehensive Comp. Strategy Public, quasi state agency City of Globe Comprehensive Comp. Strategy City Government Texas Tech University System Strategic Comp & Market Study Public University Texas Tech Correctional Health Care Services Strategic Comp & Market Study Public Agency contracted with state Texas Tech Health Sciences Center (El Paso) Strategic Comp & Market Study Public Medical Facility Texas Tech Health Sciences Center (Lubbock) Strategic Comp & Market Study Public Medical Facility San Angelo University Strategic Comp & Market Study Public Institution of Higher Ed Gila County Comprehensive Comp. Strategy County Government University of Houston, Downtown Strategic Comp & Market Study Public Institution of Higher Ed Truckee Meadows Community College Comprehensive Comp. Strategy Public Institution of Higher Ed Southern Nevada College Comprehensive Comp. Strategy Public Institution of Higher Ed Dallas Community College District Faculty Asso. Faculty Compensation and Policy Public Institution of Higher Ed Texas Medical Board Comp. Market Study State Agency Santa Fe Community College Organizational Analysis Public Institution of Higher Ed Dallas Area Rapid Transit (DART) Organizational Analysis & Comp. Public, quasi state agency Alamo Colleges (5 ciokkege) Strategic Comp & Market Study Public Institution of Higher Ed North Texas Tollway Authority Organizational Analysis & Comp. Public, quasi state agency Coconino County HR Comp and Org Consulting County Government *Compensation Analysis includes Salary Schedule evaluation and development, internal equity, targeted salary increase options, FLSA, market analysis and alternative implementation strategies. `,:. - t r II1i•7:7'*liirl� . � ' III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 " 3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I)allun, fX 75234 ful 5�75 535 6383 UM Any exceptions taken to this solicitation (including terms and conditions in Exhibit 2, the General Provisions and Terms and Conditions) must be itemized on the lines below. Additional pages may be added as needed. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description The above exceptions (and any additional pages identified) are the ONLY exceptions to the specifications, General Provisions and Terms and Conditions in Exhibit 2, and sample contract to this solicitation. I understand that the City may not accept additional exceptions produced after final submission of this proposal. Signature Company Date No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature PO*%� A6$944,i Company e1fI:�:TiieI F� * aiLe3n:T:1l:l:t Date ii §r`ESYMI1H7 r ,, I�6�iri7i7xil�l�.. III* s: 3L' 3Cl�aT *�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 Please list three (3) Government references, other than the City of Denton, who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this solicitation. REFERENCE ONE GOVERNMENT /COMPANY NAME: Gila County Government, AZ (Executive, Judicial, Public Works, & Sheriff) LOCATION: 1400 E. Ash Street, Globe, AZ 85501 CONTACT PERSON AND TITLE: Mr. Don McDaniel, County Manager TELEPHONE NUMBER: 928 - 402 -4344 (Michael Scannell- Deputy County Mgr. SCOPE OF WORK: Compensation study to review Salary Plan and Grades, and Recommend new or revised pay plan and pay grades, conduct market study and report findings to County Board and Executives. Completed all work and recommended new salary plan, pay ranges, lob grades, and internal equity adjustments. We reduced lob classification from 91 to 40, aligned lobs within the new structure and placed positions in range through internal equity analysis, range penetration and years in ition. Approved by Board. CONTRACT PERIOD: 05/14/13 — 11/13/14 (Did follow -up work and training for HR, plus separate compensation work for the Judiciary in December of 2014) REFERENCE TWO GOVERNMENT /COMPANY NAME: NAIPTA- Northern Arizona Intergovernmental Transportation Agency and Coconino County LOCATION: 3773 N Kaspar Dr. Flagstaff, AZ 86004 CONTACT PERSON AND TITLE: Mr. Jeff Meilbeck, CEO & General Manage, TELEPHONE NUMBER: (928) 679 -8909 / jmeilbeck @naipta.az.gov SCOPE OF WORK: (1) On first contract, we provided compensation and classification consulting to align with the transportation industry (prior alignment was with County organizations), and review and rewrites of all transportation job descriptions. The goal of the project was to create the HR infrastructure, all policies, compensation and employee evaluation systems, and benefits for a new independent (from the County) entity serving the an expanded regional area to include Yavapai County, Coconino County, and the city of Sedona, Az. UM Global completed the project within budget and on time in six months with no loss of employees or disruption in services. (2) In December of 2014 we won a bit to perform a compensation study, FLSA analysis, salary schedule review, market study, and update of all positions over a 5 month period. We completed the project in May, 2015. Just this week NAIPTA called and extended the contract to conduct a market study for the CEO and Deputy General Manager positions. CONTRACT PERIOD: 1) Summer 2008 — Fall 2009 and 2) January, 20156 to May 2015, 9,,. I��i7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 REFERENCE THREE GOVERNMENT /COMPANY NAME: University of Houston, Downtown LOCATION: 1 Main St, Houston, TX 77002 CONTACT PERSON AND TITLE: Dr. Yvonne Montalbano, VP Employment Services & Operations TELEPHONE NUMBER: 713- 221 -8667 /Montalbanoi_uhd.edu SCOPE OF WORK: Compensation Philosophy, Job Grade Alignment, Market Study and update of 5 salary schedules for over 1,000 non - exempt staff, IT, Police, exempt staff, and faculty schedules. Also conducted FLSA and internal eauity analysis and special IT and campus Police analysis, provided recommended implementation strategy and targeting of funds to positions with greatest need. Conducted on -site town hall meeting, and met with faculty and staff to report findings. The faculty study was separate, with the market study compared to CUPA data for for similar sized colleges and universities. All recommendations approved and implemented with faculty senate approval and board approval. We conducted a special study for IT positions due to competition from the oil and gas industry. CONTRACT PERIOD: February 2013 to February 2014 9,,. II11i•7:7'*liirl� � � ' III7 �* s: 3L' 3Cl �aT *>�tii *:1�C�!„3►��1I1�I�i1�1I1 " 3►aI17I17►I�] i LIM Global HR LP 3030 1 ItJ i,eewar, Suite :i.SCICI, I)allun, fX 75234 ful 5�75 535 6383 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes = No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes = No D. Describe each affiliation or business relationship. 4 X I have no Conflict of Interest to disclose. 5 11/18/2015 Signature of person doing business with the governmental Date entity 9,,< I�6�iri7i7xil�l�.. III* s: 3L' 3Cl �aT*�tii *:1�C�!„3►��1I1�I�i1�1I1 "3►�II1I17►I�] i UM Global HR LP 3030 1 ItJ i,eewar, Suite 3.200, I) Ilan, fX 75234 ful 5�75 535 6383 The undersigned agrees this submission becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the specification, drawings, exhibits and other documents; the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of materials and equipment; and all other matters that will be required for the work before submitting a response. The undersigned agrees, if this submission is accepted, to furnish any and all items /services upon which prices are offered, at the price(s) and upon the terms and conditions contained in the specification. The period for acceptance of this submission will be 120 calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this submission has not been prepared in collusion with any other respondent, nor any employee of the City of Denton, and that the contents of this submission have not been communicated to any other respondent or to any employee of the City of Denton prior to the acceptance of this submission. Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section 1 et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, et seq. The undersigned affirms that they have read and do understand the specifications, all exhibits and attachments contained in this solicitation package. The undersigned agrees that the solicitation package posted on the website are the official specifications and shall not alter the electronic copy of the specifications and /or pricing sheet (Exhibit 1), without clearly identifying changes. The undersigned understands they will be responsible for monitoring the City of Denton Purchasing Website at: http:// www. cityofdenton .com /index.aspx"?page =397 to ensure they have downloaded and signed all addenduni required for submission with their response. I certify that I have made no willful misrepresentations in this submission, nor have I withheld information in my statements and answers to questions. I am aware that the information given by me in this submission will be investigated, with my full permission, and that any misrepresentations or omissions may cause my submission to be rejected. Acknowledge receipt of following addenda to the solicitation: Addendum No 1 Dated Addendum No 2 Dated Addendum No 3 Dated 11/06/2015 NAME AND ADDRESS OF COMPANY: Ulibarri -Mason Global HR Suite 1200 Dallas, TX 75234 Tel. No. 469- 767 -1772 Email. danu(o)_umglobalhr.com Received Received Received 11/07/2015 AUTHORI WREPR ENTATIVE: Signature A"1111644i IX I Name Daniel Ulibarri Title President Fax No. 214 - 764 -9683 9,,. Certificate Of Completion Envelope Id: A893F5CA64394B26B609C1F00682DD26 Subject: Please DocuSign: Contract Documents 5972 Source Envelope: Document Pages: 70 Signatures: 4 Certificate Pages: 9 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC- 06:00) Central Time (US & Canada) Record Tracking Status: Original 1/25/2016 4:39:34 PM Signer Events Karen E. Smith karen.smith @cityofdenton.com Assistant Purchasing Manager City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Daniel Ulibarri danu @umglobalhr.com President Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 1/25/2016 5:29:28 PM ID: f95ce453- 69a2- 48fd- b65f- 17fbb34fcdfd 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 C. Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 3 Holder: Karen E. Smith karen.smith @cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 Ell ... Signed by: aw.Lt uuloa yi FD01B4F9DED2441 . Using IP Address: 198.61.58.4 Ell ... Signed by: C821996C2A2B439... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Karen E. Smith karen.smith @cityofdenton.com I P Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 1/25/2016 4:42:34 PM Viewed: 1/25/2016 4:42:57 PM Signed: 1/25/2016 4:43:28 PM Sent: 1/25/2016 4:43:32 PM Viewed: 1/25/2016 5:29:28 PM Signed: 1/25/2016 5:33:06 PM Sent: 1/25/2016 5:33:11 PM Viewed: 1/25/2016 5:43:35 PM Signed: 1/25/2016 5:43:49 PM Sent: 1/25/2016 5:43:53 PM Viewed: 1/26/2016 8:52:22 AM ' StCUfttb Signer Events 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 Editor Delivery Events Agent Delivery Events Intermediary Delivery Events Certified Delivery Events Carbon Copy Events 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: Sherri Thurman sherri.thurman @cityofdenton.com 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 1:39:51 PM 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: Carla Romine Carla.romine @cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 3 Signature Signature Status Status Status Status Status P"IEL III�q� mlll m nn n� Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 1/25/2016 5:33:09 PM Sent: 1/25/2016 5:33:10 PM Viewed: 1/26/2016 8:07:08 AM EXHIBIT 3 Carbon Copy Events Status Timestamp Electronic Record and Signature Disclosure: Accepted: 12/18/2014 9:30:29 AM ID: 15adc6b4- 6a4b- 4f37- 87b5- 96dfeb776423 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 1/25/2016 5:43:53 PM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Daniel Ulibarri, 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. 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 3 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: kevin.gunn @cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e -mail address where we should send notices and disclosures electronically to you, you must send an email message to us at kevin.gunn @cityofdenton.com and in the body of such request you must state: your previous e -mail address, your new e -mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e -mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e -mail to kevin.gunn @cityofdenton.com and in the body of such request you must state your e -mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check -box indicating you wish to withdraw your consent, or you may; ii. send us an e -mail to kevin.gunn @cityofdenton.com and in the body of such request you must state your e -mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0 ?, Mozilla FireFox 1.0, NetSca e 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: -Allow per session cookies -Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. EXHIBIT 3 Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e -mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. Electronic Record and Signature Disclosure created on: 10/14/2014 5:02:13 PM Parties agreed to: Carla Romine 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. 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 3 How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: kevin.gunn @cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e -mail address where we should send notices and disclosures electronically to you, you must send an email message to us at kevin.gunn @cityofdenton.com and in the body of such request you must state: your previous e -mail address, your new e -mail address. We do not require any other information from you to change your email address.. In addition, you must notify DocuSign, Inc to arrange for your new email address to be reflected in your DocuSign account by following the process for changing e -mail in DocuSign. To request paper copies from City of Denton To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an e -mail to kevin.gunn @cityofdenton.com and in the body of such request you must state your e -mail address, full name, US Postal address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with City of Denton To inform us that you no longer want to receive future notices and disclosures in electronic format you may: i. decline to sign a document from within your DocuSign account, and on the subsequent page, select the check -box indicating you wish to withdraw your consent, or you may; ii. send us an e -mail to kevin.gunn @cityofdenton.com and in the body of such request you must state your e -mail, full name, IS Postal Address, telephone number, and account number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software Operating Systems: Windows2000? or WindowsXP? Browsers (for SENDERS): Internet Explorer 6.0? or above Browsers (for SIGNERS): Internet Explorer 6.0 ?, Mozilla FireFox 1.0, NetSca e 7.2 (or above) Email: Access to a valid email account Screen Resolution: 800 x 600 minimum Enabled Security Settings: -Allow per session cookies -Users accessing the internet behind a Proxy Server must enable HTTP 1.1 settings via proxy connection ** These minimum requirements are subject to change. If these requirements change, we will provide you with an email message at the email address we have on file for you at that time providing you with the revised hardware and software requirements, at which time you will have the right to withdraw your consent. EXHIBIT 3 Acknowledging your access and consent to receive materials electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please verify that you were able to read this electronic disclosure and that you also were able to print on paper or electronically save this page for your future reference and access or that you were able to e -mail this disclosure and consent to an address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format on the terms and conditions described above, please let us know by clicking the 'I agree' button below. By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -179, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving a Building Lease Agreement between the City of Denton and 4SR Mulberry, LLC, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. BACKGROUND On June 30, 2015, the City Council held a meeting at City Hall West which included a Work Session regarding the Development Services Department. The meeting agenda included a tour of City Hall West, and a discussion regarding organizational structure, capacity and workload, and priorities of the department for the coming year. At that meeting, the City Council directed staff to look into the option of leasing space to relocate department staff from City Hall West. On August 11, 2015, the City Council held a Work Session to discuss the cost - benefit of leasing space instead of remaining in City Hall West. City Council directed staff to pursue lease options. On September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of space to commence on July 1, 2016. The Budget also included a reallocation of funds intended for maintenance of City Hall West to improving the parking lot at Exposition Street instead. On October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space. City Council selected the proposal for leasing property located at 215 West Hickory and 216 West Mulberry. This agenda item is to consider approval of an Office Lease of approximately 24,853 square feet at 215 West Hickory and 216 West Mulberry and associated agreements (details below). The basic terms of the Office Lease (Consent Agenda File ID 16 -096) and supporting documents are as follows: • A seven year term at a lease rate of $16 per foot, plus actual operating expenses • A three year renewal option at the conclusion of the initial term • Exclusive use of the parking lot associated with 215 West Hickory Use of the surrounding parking lots under same ownership to provide public parking during non- City of Denton Page 1 of 3 Printed on 1/28/2016 File M ID 16 -179, Version: 1 business hours (for a total of approximately 210 parking spaces made available to the public during non - business hours) • All furniture remains in the buildings for use by City staff • A 3% rate increase after 36 months, and a 3% rate increase after five years • An Early Termination option with notice, without penalty • A separate Right of First Refusal Agreement to purchase the property in the event that the property owner wishes to sell (Consent Agenda File ID 16 -158) • A separate Subordination, Non - Disturbance and Attornment Agreement to ensure that in the event of a foreclosure on the property, the Office Lease remains in full force and effect (Consent Agenda File ID 16 -159) OPTIONS 1. Approval 2. Direct staff to negotiate changes 3. Denial RECOMMENDATION Staff recommends approval. ESTIMATED SCHEDULE OF PROJECT Lease term commences July 1, 2016 PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 30, 2015 - Work Session discussion August 11, 2015 - Work Session discussion September 15, 2015 - Approval of FY15 -16 Budget October 20, 2015 - Work Session discussion FISCAL INFORMATION Lease rate is $16 per foot annually for a total annual cost of $397,644 plus operating expenses. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.3 Promote a business - friendly environment EXHIBITS 1 - Draft Lease 2 - Draft Ordinance City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -179, Version: 1 Respectfully submitted: Aimee Bissett, Director of Development Services City of Denton Page 3 of 3 Printed on 1/28/2016 Exhibit 1 - Building Lease Building Lease Agreement Basic Information Effective Date: Date signed by Tenant Landlord: 4SR Mulberry, LLC, a Texas limited liability company Landlord's Address: 617 Primrose Court, Argyle, Texas 76226 Tenant: City of Denton, a Texas home -rule municipal corporation Tenant's Address: 215 E. McKinney St., Denton, Texas 76201 Premises: The building located at 215 W. Hickory St., the building located at 216 W. Mulberry St. (both buildings hereafter referred to as "Buildings "), and any improvements and parking lots associated with the Buildings, with all being situated in Denton, Denton County, Texas, and more particularly described in the attached Exhibit "A ". "Premises" means the Buildings and the parcels of land on which they are located as described in Exhibit „A„ Personal Property: All personal property including, but not limited to, desks, tables, chairs, credenzas, bookshelves, and file cabinets located in the Buildings as of the Commencement Date. Total rentable square footage of the Buildings: 24,853 sq. /ft. Term (months): Commencement Date Termination Date: Base Rent (monthly) Tenant's Pro Rata Share Permitted Use: A. Definitions 84 months July 1, 2016 Eighty Four (84) months after the Commencement Date Effective Date to Thirty Six (36) Months after the Effective Date to monthly base rent will be $33,137.00. Thirty Seven (37) Months after the Effective Date through Sixty (60) Months after the Effective Date the monthly base rent will be $34,131.00. Sixty One (61) Months after the Effective Date through the end of the Term the monthly base rent will be $35,155.00. One hundred percent (100 %) General office use A.I. "Agent" means agents, contractors, employees, licensees, and, to the extent under the control of the principal, invitees. Page 1 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease A.2. "Building Operating Hours" means 5:30 A.M. to 6:30 P.M. Monday through Friday, except federal holidays. A.3. "Common Areas" means all facilities and areas of the Buildings and the related land that are intended and designated by Landlord from time to time for the common, general, and exclusive use of all tenants of the Buildings. "Common Areas" do not include the DATCU Parking Lot. A.4. "Injury" means (a) harm to or impairment or loss of property or its use, (b) harm to or death of a person, or (c) "personal and advertising injury" as defined in the form of liability insurance Tenant is required to maintain. A.S. "Lienholder" means the holder of a deed of trust covering the Premises. A.6. "Operating Expenses" includes the following that are incurred in or accrued during each calendar year by the Landlord related to the Premises: A.6.a. Operation, maintenance, and repair of any part of the Premises, excluding all of such items that are expressly the obligations of Tenant herein. A.6.b. Administrative and management fees, including accounting, information, and professional services; management offices; and wages, salaries, benefits, reimbursable expenses, and taxes (or allocations of them) for full -time and part -time personnel involved in operation, maintenance, and management. A.6.c. Property, liability, and other insurance coverages carried by Landlord, including deductibles and risk - retention programs and an allocation of a portion of the cost of blanket insurance policies maintained by Landlord. A.6.d. "Real Estate Taxes" which shall include all taxes, assessments and other governmental charges, general and special, ordinary and extraordinary, of any kind and nature whatsoever including, but not limited to, assessments for public improvements or benefits and any and all taxes assessed against Landlord and attributable to taxable margin levied pursuant to Chapter 171 of the Texas Tax Code or any amendment, adjustment or replacement thereof which shall during the Term hereof be paid, assessed, levied, imposed upon or become due and payable and Landlord's expense in obtaining any refund or reduction of Real Estate Taxes. A.6.e. Security services, to the extent provided or contracted for by Landlord. AND "Operating Expenses" does not include the following regardless of when they accrued or were incurred Landlord: A.6.f. Replacement of any part of the Premises, including the mechanical, electrical, plumbing, HVAC, elevators, fire prevention and warning, and security systems, exterior windows, structural elements of the Buildings or the roof. A.6.g. Repairs and general maintenance paid by insurance proceeds or condemnation proceeds. Page 2 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease A.6.h. Depreciation, amortization, interest payments on the Premises or any part thereof, and the cost of capital improvements or additions. A.6.i. Expenses for repairs or maintenance related to the Premises that have been reimbursed to Landlord under warranties or service contracts. A.6.j. Principal payments on indebtedness secured by liens against the Buildings, or costs of refinancing that indebtedness. A.6.k. Any expenditures classified as capital expenses for federal income tax purposes. A.6.1. Any expenses paid directly by Tenant pursuant to the terms of this Lease. A.7. "Rent" means Base Rent plus any other amounts of money payable by Tenant to Landlord. B. Tenant's Obligations B.I. Tenant agrees to- B.1.a. Lease the Premises and Personal Property for the entire Term beginning on the Commencement Date and ending on the Termination Date. B.1.b. Accept the Premises and Personal Property in their present condition "AS IS," the Premises being currently suitable for the Permitted Use. B.1.c. Obey (i) all laws relating to Tenant's use, maintenance of the condition, and occupancy of the Premises and Tenant's use of any Common Areas in the Buildings; and (ii) any requirements imposed by utility companies serving or insurance companies covering the Premises or Buildings. B.1.d. Pay monthly, in advance, on the first day of the month, the Rent to Landlord at Landlord's Address. B.1.e. Obtain and pay for all utility services used by Tenant, including but not limited to electricity, gas, cable /internet, water, sewer and trash. B.1.f. Pay (i) monthly, in advance, Tenant's Pro Rata Share of the monthly estimated Operating Expenses and (ii) annually, any amount by which the actual Operating Expenses exceed the estimated Operating Expenses, within thirty (30) days of receiving notice of such difference from Landlord. B.1.g. Allow Landlord, subject to Section D.B, to enter the Premises to perform Landlord's obligations, inspect the Premises and /or Personal Property, and show the Premises to prospective purchasers or tenants. B.1.h. Repair, replace, and maintain any part of the Premises or Personal Property that Landlord is not obligated to repair, replace, or maintain, normal wear excepted as set forth below. B.1.h.i. Tenant's repair, replacement, and maintenance obligations include the following: (i) floor covering and raised flooring, (ii) interior partitions, (iii) doors, (iv) the Page 3 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease interior side of demising walls, (v) electronic, telephone, fiber and data cabling and related equipment that is installed by or for the benefit of Tenant and located on the Premises or in other parts of the Buildings, (vi) kitchens, including hot water heaters, plumbing, dishwashers, ice machines, and similar facilities serving Tenant exclusively, (vii) telephone rooms used exclusively by Tenant, (viii) Alterations performed by Tenant or contractors retained by Tenant, including related HVAC balancing, and (ix) all of Tenant's furnishings, trade fixtures, equipment, and inventory. B.1.h.ii., Tenant's repair and maintenance obligations include (i) standard mechanical (including HVAC), electrical, plumbing (excluding sewer components not located within the Buildings), and fire /life safety systems serving the Buildings generally, (ii) Common Areas, (iii) exterior windows of the Buildings, (iv) elevators serving the Buildings, (v) parking areas, excluding the DATCU parking lot, and (vi) landscaping. B.1.h.iii. Tenant's financial limitations on tenant's HVAC and elevator repair and maintenance obligations. Tenant's financial obligation for each repair or maintenance event on its HVAC repair and maintenance obligations shall be limited to thirty five percent (35 %) of the total value of the system as determined by a third party agreed upon by the parties. Any repair or maintenance event that exceeds the above limitation shall be the obligation of the Landlord. B.1.h.iv. Tenant's financial limitations on tenant's elevator repair and maintenance obligations. Tenant's financial obligation for each repair or maintenance event on its elevator repair and maintenance obligations shall be limited to fifty percent (50 %) of the total value of the system as determined by a third party agreed upon by the parties. Any repair or maintenance event that exceeds the above limitation shall be the obligation of the Landlord.B.1.i. Promptly submit in writing to Landlord any request for repairs, replacement, and maintenance that are the obligations of Landlord. B.1.j. Vacate the Premises, including the Personal Property, and return all keys to the Buildings on the last day of the Term. B.1.k. From time to time, within ten (10) days after request from Landlord, execute an estoppel certificate that states the Commencement Date and Termination Date of the lease, identifies any amendments to the lease, describes any rights to extend the Term or purchase rights, lists defaults by Landlord, and provides any other information reasonably requested. No cure or grace period provided in this Lease shall apply to Tenant's obligations to timely deliver an estoppel certificate. B.I.I. Arrange with Landlord in advance for any heating, air - conditioning, or electrical needs in excess of the services provided by Landlord and pay for such additional services as billed by Landlord. B.1.m. TO THE EXTENT PERMITTED AND LIMITED BY LAW, INDEMNIFY, DEFEND, AND HOLD LANDLORD, ITS LIENHOLDER, AND THEIR RESPECTIVE AGENTS (COLLECTIVELY, THE "LANDLORD PARTIES "), HARMLESS FROM ANY INJURY AND ANY RESULTING OR RELATED CLAIM (INCLUDING SUMS PAID IN SETTLEMENTS OF CLAIMS), ACTION, LOSS, LIABILITY, JUDGMENTS, Page 4 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease DAMAGES, PENALTIES, FINES, OR REASONABLE EXPENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES, CONSULTANT FEES, EXPERT FEES AND OTHER FEES AND COURT AND OTHER COSTS, IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST THE LANDLORD PARTIES OCCURRING ON THE PREMISES OR THE DATCU PARKING LOT (hereafter defined). B.1.n. Abide by any obligations contained in Section D. B.1.o. Tenant, no later than the December 31" of each year, shall provide Landlord with copies of any written documentation in its possession for any maintenance and repair performed on the HVAC and elevator systems for the preceding twelve (12) months. B.2. Tenant agrees not to- B.2.a. Use the Buildings for any purpose other than the Permitted Use. B.2.b. Create any nuisance. B.2.c. Interfere with Landlord's management of the Buildings. B.2.d. Permit any waste. B.2.e. Use the Premises in any way that would increase insurance premiums or void insurance on the Buildings. B.2.f. Alter the Premises except in compliance with Subsection D.6. B.2.g. Allow a lien to be placed on the Premises and /or Personal Property. B.2.h. Assign this lease or sublease any portion of the Premises, including the Personal Property, without Landlord's written consent. C. Landlord's Obligations and Representations C.I. Landlord agrees to- C.1.a. Lease to Tenant the Premises and Personal Property for the entire Term beginning on the Commencement Date and ending on the Termination Date. C.1.b. Obey all laws relating to Landlord's operation of the Buildings and Common Areas. C.1.c. Repair, replace, and maintain the structural elements (including, but not limited to, roof, foundation, exterior walls, doors and corridors of the Buildings), sewer components not located within the Buildings, and the roof of the Buildings. Landlord will promptly make repairs (taking into account the nature and urgency of the repair) for which Landlord is responsible. C.1.d. Perform, or cause to be performed, any repair and maintenance on the HVAC and elevator systems that exceed tenant's annual financial limitations on the same as set forth in subsection B.1.h.iii. C.1.e. Replace the standard mechanical (including HVAC), electrical, plumbing, and fire /life safety systems serving the Buildings generally, exterior windows of the Buildings, and elevators serving the Buildings. Page 5 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease C.1.f. Provide Tenant promptly after receipt of a written request from Tenant with a reconciliation of Tenant's Pro Rata Share of the actual Operating Expenses incurred by Landlord during the preceding calendar year and the estimated Operating Expenses paid by Tenant for the same period and reimburse Tenant for the amount of any estimated Operating Expenses paid by Tenant in excess of Tenant's Pro Rata Share of actual Operating Expenses for the preceding calendar year. C.1.g. INDEMNIFY, DEFEND, AND HOLD TENANT, INCLUDING, BUT NOT LIMITED TO, CITY COUNCIL MEMBERS, MEMBERS OF ITS VARIOUS BOARDS AND COMMISSIONS, EMPLOYEES AND AGENTS, HARMLESS FROM ANY INJURY AND ANY RESULTING OR RELATED CLAIMS (INCLUDING SUMS PAID IN SETTLEMENTS OF CLAIMS), ACTION, LOSS, LIABILITY, JUDGMENTS, DAMAGES, PENALTIES, FINES, OR REASONABLE EXPENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES, CONSULTANT FEES, EXPERT FEES AND OTHER FEES AND COURT AND OTHER COSTS, IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST LANDLORD OCCURRING IN ANY PORTION OF THE COMMON AREAS OR THE DATCU PARKING LOT AND WHICH ARISE DURING OR AFTER THE TERM OF THIS LEASE FROM OR IN CONNECTION WITH THE PRESENCE OR SUSPECTED PRESENCE OF HAZARDOUS MATERIALS (AS DEFINED HEREIN) IN THE SOIL OR GROUNDWATER ON OR UNDER THE PREMISES. THE INDEMNITY CONTAINED IN THIS PARAGRAPH (i) IS INDEPENDENT OF LANDLORD'S INSURANCE, (ii) WILL NOT BE LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS, (iii) WILL SURVIVE THE END OF THE TERM, AND (iv) WILL APPLY EVEN IF AN INJURY IS CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OR STRICT LIABILITY OF TENANT BUT WILL NOT APPLY TO THE EXTENT AN INJURY IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TENANT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE INDEMNIFICATION PROVIDED BY THIS SECTION WILL SPECIFICALLY COVER COSTS INCURRED IN CONNECTION WITH ANY INVESTIGATION OF SITE CONDITIONS OR ANY CLEAN -UP, REMEDIAL WORK, REMOVAL OR RESTORATION WORK REQUIRED BY ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY. C.1.h. Abide by any obligations contained in Section D. C.1.i. Provide Tenant a copy of the Notice of Appraised Value received from the Denton Central Appraisal District within (10) days of receiving it. C.2. Landlord agrees not to- C.2.a. Interfere with Tenant's possession of the Premises and Personal Property as long as Tenant is not in default. C.2.b. Unreasonably withhold consent to a proposed assignment, transfer, sublease, alteration or signage request. D. General Provisions Landlord and Tenant agree to the following: Page 6 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease D.I. Lease Grant. Landlord leases the Premises and Personal Property to Tenant and Tenant leases the Premises and Personal Property from Landlord, together with the Common Areas. D.2. Tenant's Right to Possession. As long as Tenant pays the Rent and fully performs all of its other covenants and agreements under this Lease, Tenant will have the right to occupy the Premises, and use the Personal Property, without hindrance from Landlord or any person lawfully claiming through Landlord, subject to the terms of this Lease, all Mortgages, insurance requirements, and applicable law. D.3. Term; Adjustment of Commencement Date; Possession. D.3.a. Term. This Lease governs the relationship between Landlord and Tenant with respect to the Premises from the Effective Date through the Termination Date, unless terminated early in accordance with this Lease. The Term of this Lease commences on the Commencement Date or any date before the Commencement Date in which the Tenant takes possession of any part of the Premises for purposes of conducting business. D.3.b. Acceptance of Premises and Personal Property. The Premises and Personal Property are accepted by Tenant in "AS IS" condition and configuration subject to (1) any Landlord obligation to perform Landlord Work expressly set forth herein, (2) Landlord's repair obligations under Subsection C.3.a, and (3) any latent defects (which Tenant notifies Landlord of within ninety (90) days after the Commencement Date) in the Premises or the Landlord Work. By taking possession of the Premises, Tenant agrees that the Premises are in good order and satisfactory condition and agrees that there are no representations or warranties, express or implied, by Landlord about the condition of the Premises or the Buildings. D.3.c. Possession of Premises and Personal Property Before Commencement Date. Tenant will not take possession of the Premises and Personal Property before the Commencement Date except with Landlord's written consent. If Tenant takes possession of the Premises and Personal Property or commences business activities at the Premises, and uses the Personal Property, before the Commencement Date with Landlord's permission, the possession and occupancy will be subject to the terms and conditions of this Lease and Tenant will pay Rent (defined in Subsection A.B.) to Landlord for each day of possession before the Commencement Date. However, except for the cost of services requested by Tenant, Tenant will not be required to pay Base Rent and Tenant's Pro Rata Share of Operating Expenses for any days of possession before the Commencement Date during which Tenant, with Landlord's written consent, is in possession of the Premises and Personal Property for the sole purpose of performing improvements or installing furniture, equipment, or other personal property. D.4. Latent Defects. Tenant will have a period of six months after the Commencement Date to inspect the Premises and notify Landlord in writing of any defects and maintenance, repairs or replacements required to (a) the fixtures and equipment serving the Premises are in good operating condition, including the plumbing, electrical and lighting systems, any fire protection sprinkler system, the HVAC systems and equipment, the roof, skylights, doors, windows, and elevators; and (b) the interior of the Premises is in good condition above named fixtures, equipment and interior. Within a reasonable period of time after the timely receipt of any such written notice from Tenant, Landlord shall, at Landlord's expense, correct the defects and perform the maintenance, repairs and replacements. D.S. Utility Services. Page 7 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease Tenant shall pay the cost of all Utilities used for the Premises and the cost of replacing light bulbs and tubes. D.6. Cleaning. Tenant must keep the Premises and Personal Property clean and sanitary and promptly dispose of all trash in appropriate receptacles. Tenant will provide, at Tenant's expense, janitorial services to the Premises. D.7. Alterations. D.7.a. When Consent Is Required. Tenant will not make any alterations, additions, or improvements to the Premises or install any fiber or cable on the Premises or in other parts of the Buildings (collectively, "Alterations ") without first obtaining Landlord's written consent. However, Landlord's consent will not be required for any Alteration that satisfies all of the following criteria ( "Minor Alteration "): (i) it is of a cosmetic nature such as painting, wallpapering, hanging pictures, or installing carpeting, (ii) it is not visible from outside the Buildings, (iii) it will not affect the systems or structure of the Buildings, and (iv) it does not require work to be performed inside the walls or above the ceiling of the Buildings. D.7.b. Requirements for All Alterations, Including Minor Alterations. Before starting work on any Alteration, Tenant will give the following to Landlord for review and approval: plans and specifications; names of proposed contractors (provided that Landlord may designate specific contractors for Buildings systems); copies of contracts; necessary permits and approvals; evidence of contractors' and subcontractors' insurance; and Tenant's security for performance of the Alteration. Changes to the plans and specifications must also be submitted to Landlord for its approval. Some of these requirements may be waived by Landlord for the performance of specific Minor Alterations, but the waiver must be obtained in writing before the commencement of the Minor Alterations. Landlord's waiver on one occasion does not waive its right to enforce the requirements on any other occasion. Alterations must be made in a good and workmanlike manner using materials of a quality that is at least equal to what is designated by Landlord as the minimum standard for the Buildings. On completion of the Alterations, Tenant will furnish "as- built" plans (which are required for Minor Alterations), completion affidavits, full and final waivers of liens, receipts, and bills covering all labor and materials. Tenant will ensure that the Alterations comply with all insurance requirements and Laws. D.7.c. Personal Property Alteration. Tenant shall not make any alterations to the Personal Property. D.B. Entry by Landlord. Landlord and its agents, contractors, and representatives may enter the Premises to inspect or show the Premises and /or Personal Property, to clean and make repairs, alterations, or additions to the Premises, and to conduct or facilitate repairs, alterations, or additions to any part of the Buildings, including other tenants' premises. Except in emergencies or to provide building services after Normal Business Hours, Landlord will give Tenant reasonable notice of entry into the Premises, which may be given orally. Landlord may temporarily close all or part of the Premises to perform repairs, alterations, and additions, if reasonably necessary for the protection and safety of Tenant and its employees. However, except in emergencies, Landlord will not close the Premises if the work can reasonably be completed on weekends and after Normal Business Hours. However, Landlord is not Page 8 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease required to conduct work on weekends or after Normal Business Hours if the work can be conducted without closing the Premises. D.9. Abatement. Tenant's covenant to pay Rent and Landlord's covenants are independent. Except as otherwise provided, Tenant will not be entitled to abate Rent for any reason. D.10. Insurance. D.10.a. Tenant's Insurance. Tenant will maintain the following insurance ( "Tenant's Insurance ") at its sole cost and expense: (1) commercial general liability insurance applicable to the Premises, its appurtenances and the DATCU Parking Lot providing, on an occurrence basis, a minimum combined single limit of Five Million Dollars ($5,000,000.00) (coverage in excess of One Million Dollars ($1,000,000.00)1 may be provided through an umbrella /excess liability policy), (2) causes of loss — special form (formerly "all risk ") property insurance, including flood and earthquake, covering all above - building- standard leasehold improvements and Tenant's trade fixtures, equipment, furniture, and other personal property within the Premises ( "Tenant's Property ") in the amount of the full replacement cost, (3) business automobile liability insurance to cover all owned, hired, and non -owned automobiles owned or operated by Tenant providing a minimum combined single limit of One Million Dollars ($1,000,000.00) 1, (5) workers' compensation insurance as required by the state in which the Premises are located and in amounts as may be required by applicable statute (but if no workers' compensation insurance is statutorily required, Tenant will carry workers' compensation insurance in a minimum amount of Five Hundred Thousand Dollars ($500,000.00)), and (6) employer's liability insurance in an amount of at least Five Hundred Thousand Dollars ($500,000.00) per occurrence. All commercial general liability and business automobile liability insurance policies will name Landlord (or any successor), Landlord's Mortgagee (if any), and their respective members, principals, beneficiaries, partners, officers, directors, employees, and agents, and other designees of Landlord as "additional insureds" and will be primary with Landlord's policy being secondary and noncontributory. Tenant will provide Landlord with a certificate of insurance and all required endorsements evidencing Tenant's Insurance before the earlier of the Commencement Date or the date Tenant is provided with possession of the Premises for any reason, and on renewals at least ten (10) days before the insurance coverage expires. All of Tenant's Insurance policies, endorsements, and certificates will be on forms and with any deductibles and self- insured retention reasonably acceptable to Landlord. The limits of Tenant's insurance will not limit Tenant's liability under this Lease. For purposes of this section, insurance requirements may be met through self- insurance, provided; however, that any self- insurance meets all the requirements for the insurance coverage as required herein. However, for the Landlord to accept self- insurance, Tenant must demonstrate by written information that it has adequate financial resources to be a self- insured entity as reasonably determined by Landlord, based on financial information furnished by Tenant. Nothing contained in this section shall in anyway impact the immunities and damage caps available to Tenant under the Texas Tort Claims Act and in no situation shall Tenant's liability to the Landlord be greater than the City's liability under the Texas Tort Claims Act. D.10.b. Landlord's Insurance. Landlord will maintain the following insurance: (1) commercial general liability insurance applicable to the Premises that provides, on an occurrence basis, a minimum combined single limit of Five Million Dollars ($5,000,000.00) Page 9 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease (coverage in excess of One Million Dollars ($1,000,000.00) may be provided through an umbrella /excess liability policy), and (2) causes of loss — special form (formerly "all risk ") property insurance on the Buildings in the amount of the replacement cost, as reasonably estimated by Landlord. The foregoing insurance and any other insurance carried by Landlord may be affected by a policy or policies of blanket insurance and will be for the sole benefit of Landlord and under Landlord's sole control. Tenant will have no right or claim to any proceeds of this insurance or any other rights under it. D.11. Release of Claims /Subrogation. LANDLORD AND TENANT RELEASE EACH OTHER AND LIENHOLDER, AND THEIR RESPECTIVE AGENTS, FROM ALL CLAIMS OR LIABILITIES FOR DAMAGE TO THE PREMISES OR BUILDINGS, DAMAGE TO OR LOSS OF PERSONAL PROPERTY WITHIN THE BUILDINGS, AND LOSS OF BUSINESS OR REVENUES THAT ARE COVERED BY THE RELEASING PARTY'S PROPERTY INSURANCE OR THAT WOULD HAVE BEEN COVERED BY THE REQUIRED INSURANCE IF THE PARTY FAILS TO MAINTAIN THE PROPERTY COVERAGES REQUIRED BY THIS LEASE. THE PARTY INCURRING THE DAMAGE OR LOSS WILL BE RESPONSIBLE FOR ANY DEDUCTIBLE OR SELF - INSURED RETENTION UNDER ITS PROPERTY INSURANCE. LANDLORD AND TENANT WILL NOTIFY THE ISSUING PROPERTY INSURANCE COMPANIES OF THE RELEASE SET FORTH IN THIS PARAGRAPH AND WILL HAVE THE PROPERTY INSURANCE POLICIES ENDORSED, IF NECESSARY, TO PREVENT INVALIDATION OF COVERAGE. THIS RELEASE WILL NOT APPLY IF IT INVALIDATES THE PROPERTY INSURANCE COVERAGE OF THE RELEASING PARTY. THE RELEASE IN THIS PARAGRAPH WILL APPLY EVEN IF THE DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OR STRICT LIABILITY OF THE RELEASED PARTY OR ITS AGENTS BUT WILL NOT APPLY TO THE EXTENT THE DAMAGE OR LOSS IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE RELEASED PARTY OR ITS AGENTS. D.12. Casualty /Total or Partial Destruction D.12.a. If the Buildings are damaged by casualty, and the damage would prevent or materially interfere with Tenant's Permitted Use of the Premises, and the Buildings can be restored within 90 days, Landlord will, at its expense, restore the roof, foundation, Common Areas, and structural soundness of the exterior walls of the Buildings to substantially the same condition that existed before the casualty and Tenant will, at its expense, be responsible for replacing any of its damaged furniture, fixtures, additions or other improvements that Tenant is required to insure, and personal property belonging to Tenant. If Landlord fails to complete the portion of the restoration for which Landlord is responsible within one hundred and twenty (120) days from the date of written notification by Tenant to Landlord of the casualty, Tenant may terminate this lease by written notice delivered to Landlord before Landlord completes Landlord's restoration obligations. D.12.b. If the Buildings cannot be restored within ninety (90) days, Landlord has an option to restore the Buildings. If Landlord chooses not to restore, the Lease will terminate. If Landlord chooses to restore, Landlord will notify Tenant of the estimated time to restore and give Tenant an option to terminate this Lease by notifying Landlord in writing within ten (10) days of Tenant's receipt of Landlord's notice. If Tenant does not terminate this Lease, the Lease will continue and Landlord will restore the Buildings as provided in D.13.a. above. Page 10 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease D.12.c. To the extent the Buildings are untenantable after the casualty, the Rent will be adjusted as may be fair and reasonable. D.13. Condemnation /Substantial or Partial Taking D.13.a. If the Buildings cannot be used for the purposes contemplated by the Lease because of condemnation or purchase in lieu of condemnation, the Lease will terminate. D.13.b. If there is a condemnation or purchase in lieu of condemnation and the Lease is not terminated, Landlord will, at Landlord's expense, restore the Buildings, and the Rent payable during the unexpired portion of the Term will be adjusted as may be fair and reasonable. D.13.c. Tenant will have no claim to the condemnation award or proceeds in lieu of ,.I.-IZI. •, D. 14. Interest and Late Charges. Tenant agrees that all sums to be paid under this Lease, if not paid when due, shall bear interest on the unpaid portion thereof at the per annum rate equal to the lesser of eighteen percent (18 %) or the maximum rate permitted by law from the date when due but not in excess of the highest legal rates. Tenant further agrees that for each calendar month, that the Rent is not paid to Landlord within ten (10) days of the due date as provided herein above, Tenant shall promptly pay to Landlord a late fee equal to ten (10 %) percent of the monthly Rent. If Landlord shall pay any monies, or incur any expenses in correction of any violation of any covenant of Tenant herein set forth, the amounts so paid or incurred shall, at Landlord's option and on notice to Tenant, be considered additional Rent payable by Tenant with the first installment of Minimum Rent thereafter to become due and payable, and may be collected or enforced as by law provided with respect to Rent. Tenant shall pay to Landlord Fifty and No /100 Dollars ($50.00) for each of Tenant's checks returned to Landlord unpaid by Tenant's bank.D.15. Default by Landlord /Events. Defaults by Landlord are failing to comply with any provision of the Lease within 30 days after written notice by Tenant, or if such failure is of a nature to require more than thirty (30) days for remedy and continues beyond the time reasonably necessary to cure. D.16 Default by Landlord /Tenant's Remedies. Tenant's remedies for Landlord's default are to sue for damages, and, if Landlord does not comply with the requirements of C.1.c. and C.1.d. within thirty (30) days after default, terminate this lease. In no event shall Tenant withhold, deduct or offset any expense or claim from the payment of Rent. D.17. Default by Tenant /Events. Defaults by Tenant are (a) failing to pay timely Rent, (b) abandoning or vacating a substantial portion of the Premises, and (c) failing to comply within ten days after written notice with any provision of this lease other than the defaults set forth in (a) and (b). D.18. Default by Tenant /Landlord's Remedies. Landlord's remedies for Tenant's default are to (a) enter and take possession of the Premises and Personal Property, after which Landlord may relet the Premises and Personal Property on behalf of Tenant and receive the rent directly by reason of the reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to relet, (b) enter the Premises and perform Tenant's obligations and charge Tenant for the costs of such cure, (c) apply all or part of the Security Deposit to the default of Tenant, and (d) terminate this lease by written notice and sue for damages. Landlord may enter and take possession of the Premises and Personal Property, without terminating this Lease, by self -help, by picking or changing locks if necessary, and may lock out Tenant or any other person who may be occupying the Premises and using the Personal Property, until the default is cured, without being liable for damages. Notwithstanding anything to the contrary in this Lease, if more Page 11 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease than 2 monetary defaults by Tenant of any kind occurs during any 12 consecutive month period, the same shall constitute a default under this Lease, and Landlord shall have the right, in addition to all of the remedies set forth above, to any of the following remedies, upon written notice to Tenant: (1) Increase all Base Rent due for the remainder of the Term by an amount equal to 10% of the rate otherwise payable; or (2) Require Tenant to make all remaining payments due under the Lease by certified funds. D.19. Surrender of Premises and Personal Property. All improvements to the Premises (collectively, "Leasehold Improvements ") will be owned by Landlord and will remain on the Premises without compensation to Tenant. At the expiration or termination of this Lease or Tenant's right of possession, Tenant will remove Tenant's Removable Property (defined below) from the Premises and surrender the Premises to Landlord, broom clean and in good order, condition, and repair, except for ordinary wear and tear. The term "Tenant's Removable Property" means (a) fiber, cable and related appurtenances installed by or for the benefit of Tenant and located on the Premises or in other parts of the Buildings, (b) any Leasehold Improvements that are performed by or for the benefit of Tenant and, in Landlord's reasonable judgment, are of a nature that would require removal and repair costs that materially exceed the removal and repair costs associated with standard office improvements ( "Special Installations "), and (c) Tenant's personal property. Despite the foregoing, Landlord may, in its sole discretion and at no cost to it, require Tenant to leave any of its Special Installations on the Premises. If Tenant fails to remove any of Tenant's Removable Property (other than Special Installations that Landlord has designated to remain on the Premises) within two (2) days after the termination of this Lease or of Tenant's right to possession, Landlord, at Tenant's sole cost and expense, will be entitled (but not obligated) to remove and store Tenant's Removable Property. Landlord will not be responsible for the value, preservation, or safekeeping of Tenant's Removable Property. Tenant will pay Landlord, on demand, the expenses and storage charges incurred for Tenant's Removable Property. To the fullest extent permitted by Law, any unused part of Tenant's Security Deposit may be applied to offset Landlord's costs specified in the preceding sentence. In addition, if Tenant fails to remove Tenant's Removable Property from the Premises or storage within thirty (30) days after written notice, Landlord may deem all or any part of Tenant's Removable Property to be abandoned, and title to Tenant's Removable Property (except for any Hazardous Materials [defined in Subsection D.20.) will be deemed to be immediately vested in Landlord. Except for Special Installations designated by Landlord to remain on the Premises, Tenant's Removable Property will be removed by Tenant before the Expiration Date. However, with Landlord's written consent (which must be requested by Tenant at least thirty (30) days in advance of the Expiration Date and which may not be unreasonably withheld), Tenant may remain on the Premises for up to five (5) days after the Expiration Date for the sole purpose of removing Tenant's Removable Property. Tenant's possession of the Premises for this purpose will be subject to all of the terms and conditions of this Lease, including the obligation to pay Base Rent and Tenant's Pro Rata Share of Excess Operating Expenses on a per diem basis at the rate in effect for the last month of the Term. If this Lease is terminated before the Expiration Date, Tenant's Removable Property (except for Special Installations designated by Landlord to remain on the Premises) will be removed by Tenant on or before the date of termination. Tenant will repair any damage caused by the installation or removal of Tenant's Removable Property. D.20. Hazardous Materials. No Hazardous Materials (defined below) (except for de minimis quantities of household cleaning products and office supplies used in the ordinary course of Tenant's business at the Premises and used, kept, and disposed of in compliance with Laws) will be brought on, used on, kept on, or disposed of on or about the Premises by any Tenant Parties or any of Tenant's Page 12 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease transferees, contractors, or licensees without Landlord's written consent, which may be withheld in Landlord's sole discretion. Tenant's request for consent will include a representation and warranty by Tenant that the Hazardous Materials in question are necessary in the ordinary course of Tenant's business and will be used, kept, and disposed of in compliance with all Laws. If Contamination (defined below) occurs as a result of an act or omission of any Tenant Party, Tenant will, at its expense, promptly take all actions necessary to comply with Laws and to return the Premises, the Buildings, and any adjoining or affected property to its condition before the Contamination, subject to Landlord's written approval of Tenant's proposed methods, times, and procedures for remediation. Tenant will provide Landlord reasonably satisfactory evidence that such actions will not adversely affect Landlord or contaminated property. Landlord may require that a representative of Landlord be present during any such actions or that such actions be taken after business hours. If Tenant fails to take and diligently prosecute any necessary remediation actions within thirty (30) days after written notice from Landlord or an authorized governmental agency (or any shorter period required by any governmental agency) that remediation is required, Landlord may take such actions and Tenant will reimburse Landlord for them, within thirty (30) days of Landlord's invoice. The term "Hazardous Materials" includes any substance (a) that requires notification, investigation, or remediation under any Laws, or (b) that is defined, listed, or regulated by any governmental authority as a "hazardous waste," "extremely hazardous waste," "solid waste," "toxic substance," "hazardous substance," "hazardous material," or "regulated substance," or otherwise regulated under any Laws. "Contamination" means any release or disposal of Hazardous Materials in, on, under, at, or from the Premises or the Buildings that may result in any liability, fine, use restriction, cost recovery lien, remediation requirement, or other government or private action or imposition affecting Landlord. Under this Lease, claims arising from Contamination include but are not limited to diminution in value, restrictions on use, adverse impact on leasing space, and all costs of site investigation, remediation, removal, and restoration work, including response costs under CERCLA and similar statutes. D.21. Extension Option. D.21.a. Option to Extend the Term. Landlord grants to Tenant an option to extend the Term for an additional term of thirty -six (36) months (the "Extension "), on the same terms, conditions and covenants set forth in this Lease, except for Rent. The Option may be exercised only by written notice delivered to Landlord no earlier than One Hundred Eighty (180) days before, and no later than One Hundred Twenty (120) days before, the expiration of the Term. If Tenant fails to deliver to Landlord a written notice of the exercise of the Option within the prescribed time period, the Option will lapse, and there will be no further right to extend the Term. The Option may only be exercised by Tenant on the express condition that, at the time of the exercise, Tenant is not in default under any of the provisions of this Lease. The option is personal to Tenant and may not be exercised by an assignee or subtenant without Landlord's written consent. D.21.b. Rent During the Extension. The Base Rent during the Extension will be the Fair Market Rental determined as follows: D.21.b.i. The "Fair Market Rental" of the Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of Premises comparable to the Premises if the property were exposed for lease on the open market for a reasonable period of time, and taking into account the term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the Page 13 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease property may be used and not just the use proposed to be made of the Premises by Tenant. Upon proper written notice by Tenant to Landlord of Tenant's intention to elect to exercise the renewal Option, Landlord shall, within One Hundred Eighty (180) days thereafter, notify Tenant in writing of Landlord's proposed Fair Market Rental amount, and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landlord's proposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within seventy five (75) days after receipt of Landlord's notice will be deemed Tenant's acceptance of Landlord's proposed Fair Market Rental amount. D.21.b.ii. If Landlord and Tenant have not been able to agree on the Fair Market Rental amount within forty (40) days following the exercise of the Option, the Fair Market Rental for the Extension will be determined by the following appraisal process. Landlord and Tenant shall endeavor in good faith to select a single Appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. If Landlord and Tenant are able to agree upon and select a single Appraiser, that Appraiser will determine the Fair Market Rental for the Extension. If Landlord and Tenant are unable to agree upon a single Appraiser within days after the end of the 40 -day period, each will then appoint one Appraiser by written notice to the other, given within days after the end of the 40 -day period. Within five business days after the two Appraisers are appointed, the two Appraisers will appoint a third Appraiser. If either Landlord or Tenant fails to appoint its Appraiser within the prescribed time period, the single Appraiser appointed will determine the Fair Market Rental amount of the Premises. Each party will bear the cost of the appraiser appointed by it and the parties will share equally the cost of the third appraiser. The Fair Market Rental of the Premises will be the average of two of the three appraisals that are closest in amount, and the third appraisal will be disregarded. D.22. Default /Waiver /Mitigation. It is not a waiver of default if the non - defaulting party fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in this lease does not preclude pursuit of other remedies in this lease or provided by applicable law. Landlord and Tenant have a duty to mitigate damages. D.23. Holdover. If Tenant does not vacate the Premises following termination of this Lease, it shall be considered a tenancy from month to month with a rent equal to one hundred percent (150 %) of the Base Rent, cancelable by either Landlord or Tenant upon thirty (30) days' written notice. No holding over by Tenant, whether with or without the consent of Landlord, will extend the Term. Tenant shall also indemnify, defend and hold Landlord harmless from and against all claims and damages, consequential as well as direct, sustained by reason of Tenant's holding over. D.24. Alternative Dispute Resolution. Landlord and Tenant agree to mediate in good faith before filing a suit for damages. D.25. Attorney's Fees. If either party retains an attorney to enforce this lease, the party prevailing in litigation is entitled to recover reasonable attorney's fees and other fees and court and other costs. D.26. Venue. Exclusive venue is in the county in which the Premises are located. D.27. Entire Agreement. This lease, its exhibits, addenda, and riders are the entire agreement of the parties concerning the lease of the Premises by Landlord to Tenant. There are no representations, Page 14 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease warranties, agreements, or promises pertaining to the Premises or the lease of the Premises by Landlord to Tenant, and Tenant is not relying on any statements or representations of any agent of Landlord, that are not in this lease and any exhibits, addenda, and riders. D.28. Amendment of Lease. This lease may be amended only by an instrument in writing signed by Landlord and Tenant. D.29.1-imitation of Warranties. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASE. D.30. Notices. Any notice required or permitted under this lease must be in writing. Any notice required by this lease will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this lease. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. D.31. Abandoned Property. Landlord may retain, destroy, or dispose of any property left on the Premises at the end of the Term. D.32. Authority. Landlord covenants, warrants, and represents that (1) each individual executing, attesting, and delivering this Lease on behalf of Landlord is authorized to do so on behalf of Landlord, (2) this Lease is binding on and enforceable against Landlord, and (3) Landlord is duly organized and legally existing in the state of its organization and is qualified to do business in the state in which the Premises are located. Similarly, Tenant covenants, warrants, and represents that (1) each individual executing, attesting, and delivering this Lease on behalf of Tenant is authorized to do so on behalf of Tenant, (2) this Lease is binding on and enforceable against Tenant, and (3) Tenant is duly organized and legally existing in the state of its organization and is qualified to do business in the state in which the Premises are located. D.33. Time of Essence; Relationship; Binding Agreement. Time is of the essence for Tenant's performance of its obligations and the exercise of any expansion, renewal, or extension rights or other options granted to Tenant. This Lease will create only the relationship of landlord and tenant between the parties, and not a partnership, joint venture, or any other relationship. This Lease and its covenants and conditions will inure only to the benefit of and be binding only on Landlord and Tenant and their permitted successors and assigns. D.34. Entire Agreement; Amendment. This Lease contains the parties' entire agreement about the subject matter of the transaction. All understandings, discussions, and agreements previously made between the parties, written or oral, are superseded by this Lease, and neither party is relying on any warranty, statement, or representation not contained in this Lease. This Lease may be modified only by a written agreement signed by both Landlord and Tenant. The exhibits and riders attached to this Lease are incorporated into and made a part of this Lease for all purposes. D.35. Tax Protest. Landlord assigns to Tenant all rights under all Laws to protest appraised values and receive notice of reappraisal regarding the Premises (including Landlord's personal property), regardless of whether Landlord contests the appraisal. Page 15 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease D.36. Prohibited Persons and Transactions. Tenant represents to Landlord that (1) neither Tenant nor any person or entity that directly owns a ten percent (10 %) or greater equity interest in it, nor any of its officers, directors, or managing members, is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ( "OFAC ") of the Department of the Treasury (including those named in the OFAC's Specially Designated and Blocked Persons List) or under Executive Order 13224 ( "Executive Order ") effective on September 24, 2001, and titled "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism," or other Laws (each such person, a "Prohibited Person "), (2) Tenant's activities do not violate the International Money Laundering Abatement and Anti - Terrorist Financing Act of 2001, or the regulations or orders promulgated under it, or other anti - money - laundering Laws ( "Anti - Money- Laundering Laws "), and (3) throughout the Term of this Lease, Tenant will comply with the Executive Order and with the Anti - Money- Laundering Laws. D.37. Off-Site Parking. Tenant, including its invitees, will, at all times during the Term of the lease, have exclusive use of the parking lot located on the Premises. Additionally, Tenant, including its invites, will have non - exclusive use of the parking lot (the "DATCU Parking Lot ") identified as the Additional City Parking After Hours on Exhibit "B" hereto from 6:00 pm to 6:00 am Mondays through Thursdays and from 6:00 pm on Fridays until 6:00 am on Mondays. D.38. Early Termination. D.38.a. Beginning thirty six (36) months after the Effective Date and concluding the day before sixty (60) months after the Effective Date and provided Tenant is not in default under this Lease beyond the applicable cure period, Tenant shall have the right to terminate the Lease, in Tenant's sole discretion, at any time by providing the Landlord with twelve (12) months ninety (90) days advance written notice. D.38.b. Beginning sixty (60) months after the Effective Date and provided Tenant is not in default under this Lease beyond the applicable cure period, Tenant shall have the right to terminate the Lease, in Tenant's sole discretion, at any time by providing the Landlord with six (6) months advance written notice. D.39. Funding and Non - Appropriation. This Lease shall terminate in the event that the governing body of Tenant shall fail to appropriate sufficient funds to satisfy any obligation of Tenant hereunder. Termination shall be effective as of the last day of the fiscal period for which sufficient funds were appropriated or upon expenditure of all appropriated funds, whichever comes first. Termination pursuant to this non - appropriation clause shall be without further penalty or expense to either party. D. 40. Landlord's Personal Property Located in the Buildings at Time Tenant Takes Possession. Landlord is not removing any of the Personal Property located in the Buildings prior to Tenant taking possession of the Premises and is allowing Tenant use of the same during the Term of this Lease. Should Tenant, from time to time, determine in its discretion that it does not need, or intend to use, any part of Landlord's Personal Property, then, after written notice from Tenant, Landlord shall either remove said Personal Property for its use or notify Tenant in writing that it wishes to donate it to charity of its choosing. Tenant, as additional consideration for the execution of this Lease, shall deliver any donated Personal Property to any location situated in Denton County, Texas. Page 16 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease LANDLORD: 4SR Mulberry, LLC, a Texas limited liability company Bill Stevens, Managing Member Signed on the day of 12016. Larry Mozdyn, Managing Member Signed on the day of 12016. Address: Page 17 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease TENANT: City of Denton, a Texas home -rule municipal corporation George C. Campbell, City Manager Signed on the day of Address: Approved as to Legal Form: Anita Burgess, City Attorney 12016. Page 18 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease Exhibit "A" Legal Description TRACT 1: BEING LOT 1, BLOCK A, OF HALL -LEWIS ADDITION, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET R, PAGE 378, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 2: BEING PART OF LOT 1, BLOCK 25 OF ORIGINAL TOWN OF DENTON, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 4, PAGE 53, DEED RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. TRACT 3: BEING LOT 1R, BLOCK 1, OF REVISED REPLAT OF DENTON AREA TEACHERS CREDIT UNION ADDITION, AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE REPLAT THEREOF RECORDED IN CABINET H, PAGE 279, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 4: BEING A 0.367 ACRE TRACT OAR PARCEL OF LAND SITUATED IN THE WILLIAM LOVING SURVEY, ABSTRACT NUMBER 759, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. Page 19 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - Building Lease Page 20 of 20 - Building Lease Agreement (City of Denton and 4SR Mulberry, LLC) Exhibit 2 - Building Lease Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A BUILDING LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND 4SR MULBERRY, LLC, RELATED TO PROPERTIES LOCATED AT 215 WEST HICKORY STREET AND 216 WEST MULBERRY STREET, DENTON, TEXAS, 76201; PROVIDING AUTHORITY FOR THE CITY MANAGER TO EXECUTE THE AGREEMENTS SUBJECT TO FINAL LANGUAGE APPROVAL BY THE CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on June 30, 2015, the City Council held a meeting at City Hall West and directed staff to explore options for leasing office space to relocate department staff from City Hall West; and WHEREAS, on August 11, 2015, the City Council held a Work Session discussion on the cost - benefit of leasing office space versus remaining in City Hall West, and directed staff to pursue lease options; and WHEREAS, on September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of office space for the relocation of staff from City Hall West to commence on or around July 1, 2016; WHEREAS, on October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space, and selected the proposal for leasing office space, including related parking lots, located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; WHEREAS, the property located at 215 W. Hickory St., 216 W. Mulberry St., and related parking lots are owned by 4SR Mulberry, LLC, and are encumbered by a deed of trust lien for the benefit of The National Bank of Texas at Fort Worth; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Manager, or his designee, is authorized, after the The National Bank of Texas at Fort Worth and 4SR Mulberry, LLC, have executed the Subordination, Non - Disturbance and Attornment Agreement, to (i) execute, on behalf of the City of Denton, a Building Lease Agreement between the City of Denton and 4SR Mulberry, LLC; and (ii) carry out the City's responsibilities and rights under the Building Lease Agreement, including without limitation, the authorization to make the expenditures set forth in the Building Lease Agreement. SECTION 3. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties set forth in the Building Lease Agreement. Exhibit 2 - Building Lease Ordinance SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY M 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 16 -180, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving a Subordination, Non - Disturbance and Attornment Agreement between the City of Denton, 4SR Mulberry, LLC, and the National Bank of Texas at Fort Worth, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. BACKGROUND On June 30, 2015, the City Council held a meeting at City Hall West which included a Work Session regarding the Development Services Department. The meeting agenda included a tour of City Hall West, and a discussion regarding organizational structure, capacity and workload, and priorities of the department for the coming year. At that meeting, the City Council directed staff to look into the option of leasing space to relocate department staff from City Hall West. On August 11, 2015, the City Council held a Work Session to discuss the cost - benefit of leasing space instead of remaining in City Hall West. City Council directed staff to pursue lease options. On September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of space to commence on July 1, 2016. The Budget also included a reallocation of funds intended for maintenance of City Hall West to improving the parking lot at Exposition Street instead. On October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space. City Council selected the proposal for leasing property located at 215 West Hickory and 216 West Mulberry. This agenda item is to consider approval of an Office Lease of approximately 24, 853 square feet at 215 West Hickory and 216 West Mulberry and associated agreements (details below). The basic terms of the Office Lease (Consent Agenda File ID 16 -096) and supporting documents are as follows: • A seven year term at a lease rate of $16 per foot, plus actual operating expenses • A three year renewal option at the conclusion of the initial term Exclusive use of the parking lot associated with 215 West Hickory City of Denton Page 1 of 3 Printed on 1/28/2016 File M ID 16 -180, Version: 1 • Use of the surrounding parking lots under same ownership to provide public parking during non - business hours (for a total of approximately 210 parking spaces made available to the public during non - business hours) • All furniture remains in the buildings for use by City staff • A 3% rate increase after 36 months, and a 3% rate increase after five years • A separate Right of First Refusal Agreement to purchase the property in the event that the property owner wishes to sell (Consent Agenda File ID 16 -158) • A separate Subordination, Non - Disturbance and Attornment Agreement to ensure that in the event of a foreclosure on the property, the Office Lease remains in full force and effect (Consent Agenda File ID 16 -159) OPTIONS 1. Approval 2. Direct staff to negotiate changes 3. Denial RECOMMENDATION Staff recommends approval. ESTIMATED SCHEDULE OF PROJECT Lease term commences July 1, 2016 PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 30, 2015 - Work Session discussion August 11, 2015 - Work Session discussion September 15, 2015 - Approval of FY15 -16 Budget October 20, 2015 - Work Session discussion FISCAL INFORMATION Lease rate is $16 per foot annually for a total annual cost of $397,644 plus operating expenses. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.3 Promote a business - friendly environment EXHIBITS 1 - Draft Subordination, Non - Disturbance and Attornment Agreement 2 - Draft Ordinance Respectfully submitted: City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -180, Version: 1 Aimee Bissett Director of Development Services City of Denton Page 3 of 3 Printed on 1/28/2016 Exhibit 1 - SNDA Final 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. SUBORDINATION, NON - DISTURBANCE AND ATTORNMENT AGREEMENT This Subordination, Non - Disturbance and Attornment Agreement (this "Agreement ") dated this day of , 2016, is made by and among the City of Denton, a Texas home -rule municipal corporation ( "Tenant "), 4SR Mulberry, LCC, a Texas limited liability company ( "Landlord "), and The National Bank of Texas at Fort Worth, a National bank ( "Mortgagee "). WHEREAS, Mortgagee is the holder of a promissory note (herein, as it may have been or may be from time to time renewed, extended, amended, supplemented, or restated, called the "Note ") dated November 10, 2015, executed by Landlord payable to the order of Mortgagee, in the principal face amount of $3,986,439.10, bearing interest and payable as therein provided, secured by, among other things, (i) a Deed of Trust, Security Agreement and Financing Statement, (ii) Lease and Rental Assignment and Security Agreement, and (iii) Warranty Deed with Vendor's Lien (herein, as it may have been or may be from time to time renewed, extended, amended or supplemented, called the "Mortgage "), recorded or to be recorded in the land records of Denton County, Texas, covering, among other property, the land (the "Land ") described in Exhibit "A ", which is attached hereto and incorporated herein by reference, and the improvements ( "Improvements ") thereon (such Land and Improvements being herein together called the "Property "); WHEREAS, Tenant is the tenant under a lease from Landlord of even date herewith (herein, as it may from time to time be renewed, extended, amended or supplemented, called the "Lease "), covering a portion of the Property (said portion being herein referred to as the "Premises "); and WHEREAS, the term "Landlord" as used herein means the present landlord under the Lease or, if the landlord's interest is transferred in any manner, the successor(s) or assign(s) occupying the position of landlord under the Lease at the time in question. NOW, THEREFORE, in consideration of the mutual agreements herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Subordination. Tenant agrees and covenants that the Lease and the rights of Tenant thereunder, all of Tenant's right, title and interest in and to the property covered by the Lease (including, without limitation, the Premises), are and shall be subject, subordinate and inferior to (a) the Mortgage and the rights of Mortgagee thereunder, and all right, title and interest of Mortgagee in the Property, and (b) all other security documents now or hereafter securing payment of any indebtedness of the Landlord (or any prior landlord) to Mortgagee which cover or affect the Property (the "Security Documents," whether one or more). This Agreement is not intended and shall not be construed to subordinate the Lease to any mortgage, deed of trust or other security document other than those referred to in the preceding sentence, securing the indebtedness to Mortgagee. Page 1 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final 2. Non - Disturbance. Mortgagee agrees that so long as the Lease is in full force and effect and Tenant is not in default in the payment of rent, additional rent or other payments on Tenant's part to be paid or in the performance of any of the other terms, covenants or conditions of the Lease on Tenant's part to be performed, beyond the period, if any, specified in the Lease within which Tenant may cure such default, (a) Tenant's possession of the Premises under the Lease shall not be disturbed or interfered with by Mortgagee in the exercise of any of Mortgagee's foreclosure rights under the Mortgage or conveyance in lieu of foreclosure, (b) Mortgagee will not join Tenant as a party defendant for the purpose of terminating Tenant's interest and estate under the Lease in any proceeding for foreclosure of the Mortgage, and (c) Tenant's rights under the Lease will be recognized by Mortgagee in the event of foreclosure of the Mortgage, whether by power of sale or by court action, or upon a transfer of the Property by conveyance in lieu of foreclosure (the purchaser at foreclosure or the transferee in lieu of foreclosure, including Mortgagee if it is such purchaser or transferee, being herein called "New Owner') and Mortgagee agrees that the Lease shall thereafter continue in full force and effect as a direct lease between Tenant and New Owner subject to the limitations set forth in paragraph 3 below. 3. Attornment. (a) Tenant covenants and agrees that in the event of foreclosure of the Mortgage, whether by power of sale or by court action, or upon a transfer of the Property by conveyance in lieu of foreclosure, Tenant shall attorn to the New Owner as Tenant's new landlord, and Tenant agrees that the Lease shall thereafter continue in full force and effect as a direct lease between Tenant and New Owner upon all of the terms, covenants, conditions and agreements set forth in the Lease and this Agreement, except for any provisions thereof which are impossible for New Owner to perform; provided, however, that in no event shall the New Owner be: (i) liable for any act, omission, default, misrepresentation, or breach of warranty, of any previous landlord (including Landlord) or obligations accruing prior to New Owner's actual ownership of the Property; (ii) subject to any offset, defense, claim or counterclaim which Tenant might be entitled to assert against any previous landlord (including Landlord); and (iii) bound by any payment of rent, additional rent or other payments, made by Tenant to any previous landlord (including Landlord) for more than one (1) month in advance. (b) The provisions of this Agreement regarding attornment by Tenant shall be self - operative and effective without the necessity of execution of any new lease or other document on the part of any party hereto or the respective heirs, legal representatives, Page 2 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final successors or assigns of any such party. Tenant agrees, however, to execute and deliver, upon the request of New Owner, any instrument or certificate which in the reasonable judgment of New Owner may be necessary or appropriate to evidence such attornment, including a new lease of the Premises on the same terms and conditions as the Lease for the unexpired term of the Lease. 4. Estoppel Certificate. Tenant agrees to execute and deliver from time to time, upon the request of Landlord or of any holder(s) of any of the indebtedness or obligations secured by the Mortgage, a certificate regarding the status of the Lease, consisting of statements specifying, if true (or if not, specifying why not), (a) that the Lease is in full force and effect, (b) the date through which rentals thereunder have been paid, (c) the date of the commencement of the term of the Lease, (d) the nature of any amendments or modifications of the Lease, (e) that, to the best of Tenant's knowledge, no default, or state of facts which with the passage of time or notice (or both) would constitute a default, then exists under the Lease, (f) that, to the best of Tenant's knowledge, no setoffs, recoupments, estoppels, claims or counterclaims exist against Landlord, and (g) such other matters as may be reasonably requested. 5. Acknowledgment and Agreement by Tenant. Tenant acknowledges and agrees as follows: (a) Tenant acknowledges that Landlord will execute and deliver to Mortgagee, in connection with the financing of the Property, an assignment of leases and rents with respect to the Property. Tenant hereby expressly consents to such assignment and agrees that such assignment shall, in all respects, be superior to any interest Tenant has in the Lease or the Property, subject to the provisions of this Agreement. Tenant will not amend, alter or waive any provision of, or consent to the amendment, alteration or waiver of, any provision of the Lease without the prior written consent of Mortgagee. Tenant shall not prepay any rents or other sums due under the Lease for more than one (1) month in advance of the due date therefor. Tenant acknowledges that Mortgagee will rely upon this instrument in connection with the aforesaid financing. (b) In the event that Mortgagee notifies Tenant of a default under the Mortgage, Note, or Security Documents and demands that Tenant pay Tenant's rent and all other sums due under the Lease directly to Mortgagee, Tenant shall, without inquiry as to whether a default actually exists under the Mortgage, Security Documents or otherwise in connection with the Note, and notwithstanding any contrary instructions of or demands from Landlord: (i) notwithstanding Section 64.055(d) of the Texas Property Code, honor such demand and immediately turn over, without offset, all rents and all other sums due under the Lease that Mortgagee is entitled to collect under Section 64.054 of the Texas Property Code; (ii) not deduct any portion of such rents for any purpose, notwithstanding any provisions of the Texas Property Code to the contrary; and (iii) pay all rents and other sums as they accrue to the Lender. (c) To the extent the Lease contains any notice or cure periods, the date that Mortgagee begins enforcement, as contemplated by Chapter 64 of the Texas Property Code, shall not be affected, extended, or otherwise modified by reason of such periods. Page 3 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final 6. Acknowledgment and Agreement by Landlord. Landlord, as landlord under the Lease and grantor under the Mortgage, acknowledges and agrees, for Landlord and Landlord's heirs, representatives, successors and assigns, that: (a) this Agreement does not constitute a waiver by Mortgagee of any of its rights under the Mortgage, Note, or Security Documents, or in any way release Landlord from Landlord's obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of the Mortgage, Note, or Security Documents; (b) the provisions of the Mortgage, Note, or Security Documents remain in full force and effect and must be complied with by Landlord; and (c) Tenant is hereby authorized to pay Tenant's rent and all other sums due under the Lease directly to Mortgagee upon receipt of a notice as set forth in paragraph 5(d) above from Mortgagee and that Tenant is not obligated to inquire as to whether a default actually exists under the Mortgage, Security Documents or otherwise in connection with the Note. Landlord hereby releases and discharges Tenant of and from any liability to Landlord resulting from Tenant's payment to Mortgagee in accordance with this Agreement. Landlord represents and warrants to Mortgagee that a true and complete copy of the Lease has been delivered by Landlord to Mortgagee. 7. Lease Status. Landlord and Tenant each hereby certify to Mortgagee that neither Landlord nor Tenant has knowledge of any default on the part of the other under the Lease, that the Lease is bona fide and contains all of the agreements of the parties thereto with respect to the letting of the Premises and that all of the agreements and provisions therein contained are in full force and effect. 8. Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by personal delivery (by an unrelated third party courier service providing proof of delivery), by telegram, telex, or facsimile, by expedited delivery service with proof of delivery, or by registered or certified United States mail, postage prepaid, at the addresses specified at the end of this Agreement (unless any such address is changed by similar notice in writing given by the particular party whose address is to be changed). Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or facsimile, upon receipt. Notwithstanding the foregoing, no notice of change of address shall be effective except upon receipt. This Paragraph 8 shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Agreement or in the Lease or in any document (including without limitation the Mortgage or any other Security Documents) evidencing, securing or pertaining to the loan evidenced by the Note or to require giving of notice or demand to or upon any person in any situation or for any reason. 9. Miscellaneous. (a) This Agreement supersedes any inconsistent provision of the Lease. Page 4 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final (b) Nothing contained in this Agreement shall be construed to derogate from or in any way impair, or affect the lien(s), security interest(s) or provisions of the Mortgage, Note, or Security Documents. (c) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, their respective heirs, personal representatives, successors and permitted assigns, and any New Owner, and such New Owner's heirs, personal representatives, successors and assigns; provided, however, that in the event of the assignment or transfer of the interest of Mortgagee, all obligations and liabilities of the assigning Mortgagee under this Agreement shall terminate, and thereupon all such obligations and liabilities shall be the responsibility of the party to whom Mortgagee's interest is assigned or transferred; and provided, further, that the interest of Tenant under this Agreement may not be assigned or transferred without the prior written consent of Mortgagee. (d) THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENTAND INTERPRETATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND APPLICABLE UNITED STATES FEDERAL LAW, EXCEPT ONLY TO THE EXTENT, IF ANY, THAT THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED NECESSARILY CONTROL. (e) The words "herein," "hereof," "hereunder' and other similar compounds of the word "here," as used in this Agreement, refer to this entire Agreement and not to any particular section or provision hereof. (f) This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by all the parties hereto or their respective successors in interest. (g) If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not apply to or affect any other provision hereof, but this Agreement shall be construed as if such invalidity, illegality, or unenforceability did not exist. (h) The headings, captions and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. (i) THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SPECIFIC SUBJECT MATTER HEREOF AND SUPERCEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO SUCH SPECIFIC SUBJECT MATTER, AND THIS AGREEMENT MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO (IT BEING HEREBY ACKNOWLEDGED AND AGREED THAT THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF). (j) To facilitate execution of this Agreement, this Agreement may be executed in one or more counterparts as may be convenient or required. All counterparts of this Agreement Page 5 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final shall collectively constitute a single instrument; but, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. It shall not be necessary for the signature of, or on behalf of, each party to this Agreement, or that the signature of all persons required to bind any such party, appear on each counterpart of this Agreement. Each signature page to any counterpart of this Agreement may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart of this Agreement identical thereto except having attached to it additional signature pages. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and sealed as of the date first above written. -- SIGNATURE PAGES AND ACKNOWLEDGMENTS FOLLOW -- Page 6 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) 0 ATTEST: Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: Anita Burgess, City Attorney M Exhibit 1 - SNDA Final TENANT: CITY OF DENTON, TEXAS, a Texas municipal home - rule corporation George C. Campbell, City Manager Signed on the day of 12016. Acknowledgement State of Texas § Denton County § This instrument is acknowledged before me, on this the day of , 2016, by George C. Campbell, City Manager of the City of Denton, a Texas municipal home -rule corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by the City Council of the City of Denton and that he executed the same as the act of said City for the purposes and consideration therein expressed, and in the capacity therein stated. [notary stamp] Notary Public, State of Texas Page 7 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final LANDLORD: 4SR MULBERRY, LLC, a Texas limited liability company By: Signature Printed Name Title Signed on the day of State of Texas § 12016. This instrument was acknowledged before me on the day of , 2016 by [printed name of signatory], as the [title] of 4SR MULBERRY, LLC, a Texas limited liability company, on behalf of said limited liability company. [notary stamp here] Notary Public, State of Texas Page 8 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final MORTGAGEE: THE NATIONAL BANK OF TEXAS AT FORT WORTH, a National bank By: Signature Printed Name Title Signed on the day of State of Texas § 12016. This instrument was acknowledged before me on the day of , 2016 by [printed name of signatory], as the [title] of THE NATIONAL BANK OF TEXAS AT FORT WORTH, a National bank, on behalf of said National bank. [notary stamp here] Notary Public, State of Texas After recording, return to: Real Estate Division City of Denton City Service Center 901A Texas St. Denton, Texas 76210 Page 9 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 1 - SNDA Final EXHIBIT "A" LEGAL DESCRIPTION OF THE LAND TRACT 1: BEING LOT 1, BLOCK A, OF HALL -LEWIS ADDITION, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET R, PAGE 378, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 2: BEING PART OF LOT 1, BLOCK 25 OF ORIGINAL TOWN OF DENTON, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 4, PAGE 53, DEED RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. TRACT 3: BEING LOT 1R, BLOCK 1, OF REVISED REPLAT OF DENTON AREA TEACHERS CREDIT UNION ADDITION, AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE REPLAT THEREOF RECORDED IN CABINET H, PAGE 279, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 4: BEING A 0.367 ACRE TRACT OAR PARCEL OF LAND SITUATED IN THE WILLIAM LOVING SURVEY, ABSTRACT NUMBER 759, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. Page 10 of 10 - Subordination, Attornment, and Nondisturbance Agreement (City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth) Exhibit 2 - SNDA Agreement ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A SUBORDINATION, NON - DISTURBANCE AND ATTORNMENT AGREEMENT BETWEEN THE CITY OF DENTON, 4SR MULBERRY LLC, AND THE NATIONAL BANK OF TEXAS AT FORT WORTH, RELATED TO PROPERTIES LOCATED AT 215 WEST HICKORY STREET AND 216 WEST MULBERRY STREET, DENTON, TEXAS, 76201; PROVIDING AUTHORITY FOR THE CITY MANAGER TO EXECUTE THE AGREEMENTS SUBJECT TO FINAL LANGUAGE APPROVAL BY THE CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on June 30, 2015, the City Council held a meeting at City Hall West and directed staff to explore options for leasing office space to relocate department staff from City Hall West; and WHEREAS, on August 11, 2015, the City Council held a Work Session discussion on the cost - benefit of leasing office space versus remaining in City Hall West, and directed staff to pursue lease options; and WHEREAS, on September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of office space for the relocation of staff from City Hall West to commence on or around July 1, 2016; WHEREAS, on October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space, and selected the proposal for leasing office spacey, including related parking lots, located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; WHEREAS, the property located at 215 W. Hickory St., 216 W. Mulberry St., and related parking lots are owned by 4SR Mulberry, LLC, and are encumbered by a deed of trust lien for the benefit of The National Bank of Texas at Fort Worth; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Manager, or his designee, is authorized to (i) execute, on behalf of the City of Denton, the Subordination, Non - Disturbance and Attornment Agreement between the City of Denton, 4SR Mulberry, LLC, and The National Bank of Texas at Fort Worth; and (ii) carry out the City's responsibilities and rights under the Subordination, Non - Disturbance and Attornment Agreement. SECTION 3. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties set forth in the Subordination, Non - Disturbance and Attornment Agreement. Exhibit 2 - SNDA Agreement SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY li 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 16 -181, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Development Services CM/ ACM: Jon Fortune Date: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving a Right of First Refusal between the City of Denton and 4SR Mulberry, LLC, related to the properties located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; providing authority for the City Manager to execute the agreement subject to final language approval by the City Attorney; and providing an effective date. BACKGROUND On June 30, 2015, the City Council held a meeting at City Hall West which included a Work Session regarding the Development Services Department. The meeting agenda included a tour of City Hall West, and a discussion regarding organizational structure, capacity and workload, and priorities of the department for the coming year. At that meeting, the City Council directed staff to look into the option of leasing space to relocate department staff from City Hall West. On August 11, 2015, the City Council held a Work Session to discuss the cost - benefit of leasing space instead of remaining in City Hall West. City Council directed staff to pursue lease options. On September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of space to commence on July 1, 2016. The Budget also included a reallocation of funds intended for maintenance of City Hall West to improving the parking lot at Exposition Street instead. On October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space. City Council selected the proposal for leasing property located at 215 West Hickory and 216 West Mulberry. This agenda item is to consider approval of an Office Lease of approximately 24,853 square feet at 215 West Hickory and 216 West Mulberry and associated agreements (details below). The basic terms of the Office Lease (Consent Agenda File ID 16 -096) and supporting documents are as follows: • A seven year term at a lease rate of $16 per foot, plus actual operating expenses • A three year renewal option at the conclusion of the initial term • Exclusive use of the parking lot associated with 215 West Hickory Use of the surrounding parking lots under same ownership to provide public parking during non- City of Denton Page 1 of 3 Printed on 1/28/2016 File M ID 16 -181, Version: 1 business hours (for a total of approximately 210 parking spaces made available to the public during non - business hours) • All furniture remains in the buildings for use by City staff • An early termination option with notice, and without penalty • A 3% rate increase after 36 months, and a 3% rate increase after five years • A separate Right of First Refusal Agreement to purchase the property in the event that the property owner wishes to sell (Consent Agenda File ID 16 -181) • A separate Subordination, Non - Disturbance and Attornment Agreement to ensure that in the event of a foreclosure on the property, the Office Lease remains in full force and effect (Consent Agenda File ID 16 -180) OPTIONS 1. Approval 2. Direct staff to negotiate changes 3. Denial RECOMMENDATION Staff recommends approval. ESTIMATED SCHEDULE OF PROJECT Lease term commences July 1, 2016 PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 30, 2015 - Work Session discussion August 11, 2015 - Work Session discussion September 15, 2015 - Approval of FY15 -16 Budget October 20, 2015 - Work Session discussion FISCAL INFORMATION Lease rate is $16 per foot annually for a total annual cost of $397,644 plus operating expenses. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.3 Promote a business - friendly environment EXHIBITS 1 - Draft Right of First Refusal 2 - Draft Ordinance Respectfully submitted: City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -181, Version: 1 Aimee Bissett Director of Development Services City of Denton Page 3 of 3 Printed on 1/28/2016 Exhibit 1 - RFR Final 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. RIGHT OF FIRST REFUSAL Basic Information Effective Date: The date last signed by either party. Grantor: 4SR MULBERRY, LLC, a Texas limited liability company Grantors' Address: 617 Primrose Court, Argyle, Texas 76226 Grantee: City of Denton, a Texas home -rule municipal corporation Grantee's Address: 215 E. McKinney St. Denton, Texas 76201 Property: See attached Exhibit "A" Term: Eighty four months from the Effective Date Consideration: Contemporaneous execution of an office lease regarding the Property A. Grant of Right of First Refusal A.1. Grantor grants to Grantee a right of first offer to acquire the Property. A.2. During the Term, if Grantor receives an offer to purchase or other transfer of the Property, or any portion thereof or interest therein, for any form of consideration that Grantor wishes to accept, Grantor agrees to notify Grantee in writing before accepting the offer. The notice will state the identity of the proposed transferee and the complete terms of the proposed transfer. If the proposed consideration for the transfer is other than cash, the notice will also state the cash equivalent reasonably determined by Grantor for the noncash consideration. A.3. Grantee will have the right to purchase the Property on the terms set forth in Grantor's notice by giving written notice to Grantor within thirty (30) business days following the receipt of Grantor's notice. If Grantee affirmatively exercises such right, the Property will be transferred to Grantee on the terms set forth in the notice from Grantor, and Grantee will pay to Grantor the consideration set forth in such notice. A.4. If Grantee does not affirmatively exercise its right within the thirty (30) business day period, Grantor may transfer the Property to the offering party on the terms described in Grantor's notice to Grantee within the 180 -day period following the expiration of the thirty (30) business day period. Page 1 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final Moreover, within 10 days' of Grantor's request, Grantee shall execute and deliver to Grantor for the benefit of Grantor's purchaser Grantee's certification that it has waived its purchase rights as provided in this Agreement with respect to the offer it has rejected or failed to accept. Notwithstanding the foregoing, if a transfer is not consummated within the 180 -day period, Grantor may not transfer the Property without again complying with the provisions of this Agreement. If Grantor wishes to effect a transfer on terms that are less favorable to Grantor in any material respect than those described in Grantor's notice, Grantor must repeat the process set forth in this Agreement by giving a new notice to Grantee setting forth the new terms. If Grantor timely consummates a transfer, this Agreement will automatically terminate when the Property is conveyed to the party named in Grantor's notice to Grantee. A. 5. Time is of the essence. A.6. The rights granted in this Agreement expire at the end of the Term. B. Binding Effect This Agreement binds, benefits, and may be enforced by the parties and their respective representatives and successors. C. Transfers by Gift, Devise, Descent, or Otherwise without Consideration If the Property is transferred by gift, devise, descent, or another transaction that does not involve the payment of consideration in any form, then the provisions of Paragraph A of this Agreement do not apply; provided, however, that the provisions of this Agreement will be fully binding on the person acquiring title to the Property in that transaction. D. Recordation Grantee may record this Agreement or a memorandum of this Agreement in the real property records of Denton County, Texas. Grantee will execute and record a release of this Agreement following its expiration or termination within fifteen (15) business days of its expiration or termination. E. Assignment Grantee may not assign its rights under this Agreement. F. Notices Any notice required or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited in the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may be also given by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. Page 2 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final GRANTOR: 4SR MULBERRY, LLC, a Texas limited liability company By: Bill Stevens, Managing Member Signed on the day of By: Larry Mozdyn, Managing Member Signed on the day of Acknowledgments 12016. , 2016. State of Texas § County of Denton § This instrument was acknowledged before me on the day of , 2016 by Bill Stevens, as the Managing Member of4SR MULBERRY, LLC, a Texas limited liability company, on behalf of said limited liability company. [notary stamp here] Notary Public, State of Texas State of Texas § County of Denton § This instrument was acknowledged before me on the day of , 2016 by Larry Mozdyn, as the Managing Member of 4SR MULBERRY, LLC, a Texas limited liability company, on behalf of said limited liability company. [notary stamp here] Notary Public, State of Texas Page 3 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final GRANTEE: CITY OF DENTON, TEXAS, a Texas municipal home - rule corporation George C. Campbell, City Manager Signed on the day of 12016. ATTEST: Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: Anita Burgess, City Attorney M Acknowledgement State of Texas § Denton County § This instrument is acknowledged before me, on this the day of , 2016, by George C. Campbell, City Manager of the City of Denton, a Texas municipal home -rule corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by the City Council of the City of Denton and that he executed the same as the act of said City for the purposes and consideration therein expressed, and in the capacity therein stated. [notary stamp] Notary Public, State of Texas After recording, return to: Real Estate Division City of Denton City Service Center 901A Texas St. Denton, Texas 76210 Page 4 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final Page 5 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final Exhibit "A" Legal Description TRACT 1: BEING LOT 1, BLOCK A, OF HALL -LEWIS ADDITION, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET R, PAGE 378, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 2: BEING PART OF LOT 1, BLOCK 25 OF ORIGINAL TOWN OF DENTON, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 4, PAGE 53, DEED RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. TRACT 3: BEING LOT 1R, BLOCK 1, OF REVISED REPLAT OF DENTON AREA TEACHERS CREDIT UNION ADDITION, AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE REPLAT THEREOF RECORDED IN CABINET H, PAGE 279, PLAT RECORDS OF DENTON COUNTY, TEXAS. TRACT 4: BEING A 0.367 ACRE TRACT OAR PARCEL OF LAND SITUATED IN THE WILLIAM LOVING SURVEY, ABSTRACT NUMBER 759, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. Page 6 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 1 - RFR Final Page 7 of 7 — Right of First Refusal (City of Denton and 4SR Mulberry, LLC) Exhibit 2 - RFR Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A RIGHT OF FIRST REFUSAL BETWEEN THE CITY OF DENTON AND 4SR MULBERRY, LLC, RELATED TO PROPERTIES LOCATED AT 215 WEST HICKORY STREET AND 216 WEST MULBERRY STREET, DENTON, TEXAS, 76201; PROVIDING AUTHORITY FOR THE CITY MANAGER TO EXECUTE THE AGREEMENTS SUBJECT TO FINAL LANGUAGE APPROVAL BY THE CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on June 30, 2015, the City Council held a meeting at City Hall West and directed staff to explore options for leasing office space to relocate department staff from City Hall West; and WHEREAS, on August 11, 2015, the City Council held a Work Session discussion on the cost - benefit of leasing office space versus remaining in City Hall West, and directed staff to pursue lease options; and WHEREAS, on September 15, 2015, the City Council adopted the Fiscal Year 2015 -16 Budget which included a funding allocation for a lease of office space for the relocation of staff from City Hall West to commence on or around July 1, 2016; WHEREAS, on October 20, 2015, the City Council held a Work Session to consider two proposals for a lease of space, and selected the proposal for leasing office spacey, including related parking lots, located at 215 West Hickory Street and 216 West Mulberry Street, Denton, Texas, 76201; WHEREAS, the property located at 215 W. Hickory St., 216 W. Mulberry St., and related parking lots are owned by 4SR Mulberry, LLC, and are encumbered by a deed of trust lien for the benefit of The National Bank of Texas at Fort Worth; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Manager, or his designee, is authorized to (i) execute, on behalf of the City of Denton, the Right of First Refusal between the City of Denton and 4SR Mulberry, LLC; and (ii) carry out the City's responsibilities and rights under the Right of First Refusal. SECTION 3. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties set forth in the Right of First Refusal. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. Exhibit 2 - RFR Ordinance CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Lot", APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: e ak:�� City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -186, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas setting dates, times, and place for public hearings on the proposed annexation of certain property by the City of Denton, Texas, authorizing and directing the City Secretary to publish notice of such public hearings. BACKGROUND The Denton Plan, adopted in 1999 called for an aggressive annexation policy. Following this policy, the City of Denton instituted a number of annexations. In 2009, Freese and Nichols was hired to perform an annexation study. As a result, approximately 9,035 acres of land within the City of Denton Extraterritorial Jurisdiction (ETJ) was initiated for annexation in 2010. As part of the aggressive annexation in 2010, the City Council approved several ordinances for Non - Annexation Agreements (NAAs) in annexation areas referred to as DH 1, DH2, DH3, DH4, DH5, DH 11, DH 14, PAA1, PAA2, PAA3, PAA4. The agreements were approved for five years and had cessation dates of February 9, 2015 and March 2, 2015. In 2014, City Council directed staff to offer a one year extension to the original agreement that will terminate on March 16, 2016. Pursuant to the Texas Local Government Code (Tx.LGC) Subchapter C Section 43.035, a home rule city is authorized to annex certain areas in the three -year annexation plan. This plan was adopted by the City in 2010 per ordinance 2010 -093. However, certain parcels were offered Non - Annexation Agreements due to their designation, per the Denton Central Appraisal District, as properties with agricultural, wildlife management or timberland uses. Those properties that have a signed a Non - Annexation Extension Agreement are scheduled to be annexed upon the expiration date. The 2016 Annexations include approximately 4,132.40 acres involving annexation areas DH1, DH2, DH3, DH4, DH5, DH14, PAA1, PAA2, PAA3, and PAA4. Listed below is a general description of each annexation area. PAA1 General Location: South side of Jim Christal Road; north side of Tom Cole Road; east side of C. Wolfe Road; west of Masch Branch Road Acres: 741.90 City of Denton Page 1 of 3 Printed on 1/28/2016 File #: ID 16 -186, Version: 1 PAA2 General Location: South side of FM 1173; north of University Drive; west of I -35 Acres: 476.17 PAA3 General Location: South side of Ganzer Road; north of FM 1173; east and west of Barthold Road Acres: 465.37 PAA4 General Location: South side of Milam Road; north of Loop 288; east of I -35; west of Locust Street Acres: 1105.70 DH1 General Location: South side of FM 2449; west side of John Paine Road Acres: 261.65 DH 2 General Location: South side of University Drive; north side of Jim Christal Road; west and east sides of Thomas J. Egan Road; west of Masch Road Acres: 203.94 DH 3 General Location: South side of Spring Side Road; north, south and west of Corbin Road; east side of Underwood Road; west of I -35 Acres: 279.61 DH 4 General Location: East side of Bonnie Brae Street; west of Fort Worth Drive; east and west of Vintage Boulevard Acres: 274.16 DH 5 General Location: North side of Brush Creek Road; west side of Country Club Road Acres: 321.64 DH 14 General Location: South side of Robinson Road; east of Thoroughbred Trail; west of Marbella's Court Acres: 2.26 The proposed hearing dates are scheduled for Tuesday, March 1, 2016 at 6:30 p.m. and Thursday, March 3, 2016 at 2:30 p.m. in the City of Denton City Council Chambers, 215 E. McKinney Street, Denton, Texas. The Notice of Public hearing dates will be published on the City's website. OPTIONS City of Denton Page 2 of 3 Printed on 1/28/2016 File M ID 16 -186, Version: 1 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. F,XHTRTTS Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Katia Boykin, CPM Planning Supervisor City of Denton Page 3 of 3 Printed on 1/28/2016 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, SETTING DATES, TIMES AND PLACE FOR PUBLIC HEARINGS ON THE PROPOSED ANNEXATION OF CERTAIN PROPERTY BY THE CITY OF DENTON, TEXAS, AUTHORIZING AND DIRECTING THE CITY SECRETARY TO PUBLISH NOTICE OF SUCH PUBLIC HEARINGS. WHEREAS, pursuant to Section 43.052, Subchapter C, Texas Local Government Code, a home rule city is authorized to annex certain areas in the 3 -year annexation plan which was adopted by the City in 2010 under Ordinance 2010 -093; and WHEREAS, certain areas of land in the City were designated agricultural, wildlife management, or timberland use and therefore were excluded from the City's 3 -year annexation plan, which said properties are listed in and more specifically described in Exhibit A attached hereto and incorporated by reference herein ( "Properties "); and WHEREAS, the owners of the Properties entered into agreements with the City pursuant to Section 212.172 of the Texas Local Government Code in order to retain the land in the City's extraterritorial jurisdiction in exchange for the property owners' covenants not to develop the property and to consent to annexation of the Property upon breach or termination of said agreement ( "Non- Annexation Agreements "); and WHEREAS, these Non - Annexation Agreements are set to expire on March 16, 2016 and therefore the City has sent notice of its intent to annex the Property under Section 43.062, Subchapter C -1, Texas Local Government Code; and WHEREAS, the City Council desires to set public hearings in this matter for this purpose; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. On the 1" day of March at 6:30 p.m. and the 3 d day of March 2016 at 2:30 p.m. in the City of Denton Council Chamber of City Hall, 215 E. McKinney Street, Denton, Texas, the City Council will hold Public Hearings giving all interested persons the right to appear and be heard on the proposed annexation by the City of Denton, Texas of the properties described in Exhibit A. SECTION 2. The City Secretary of the City of Denton, Texas, or her designee, is hereby authorized and directed to cause notice of such public hearings to be published once in the newspaper having general circulation in the City and in the above described territory not more than twenty days nor less than ten days prior to the date of such public hearings and to publish the dates, times, and locations of the public hearings on the City's website, in accordance with Chapter 43 of the Texas Local Government Code. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY am APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CHRIS WATTS, MAYOR Exhibit A Properties Subject to Annexation Exhibit A The areas considered for annexation include approximately 4132.40 acres and are depicted in red on the map below. Also included, is a brief general description of each area that corresponds with the below map. Ji - -' b , t I - �JJ r I �, J 1 Jima ,ill f�lli � r&'J(? � >/� L rJ 4� JJ„ Mai 1 � � 1 �, � �1N'� � ( /Gf fF�, (i � �l� t� l J I �, �('J�J�J J J) p j{ J� PAA I �.,� � // �. � } IJj���- �Jf � l} ✓ifJ 1 �1 r �J ? y ",. �1� } i'. 1 I f t }' rlr J aJ P i , (( ' �,J 14#1 _ i "Oft U IAM) '�lNhl ✓�' L�, f u }, "w. i���6 :�f)�? ✓, I N �rfv ilu��� 1 �IrJ}Jif 1 L ,c J TPJ�f� ,5 >`r INIU Nli rF� 6� rl}f i sr JIM)' PAA1 General Location: South side of Jim Christal Road; north side of Tom Cole Road; east side of C. Wolfe Road; west of Masch Branch Road Acres: 741.90 PAA2 General Location: South side of FM 1173; north of University Drive; west of 1 -35 Acres: 476.17 CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 PAA3 General Location: South side of Ganzer Road; north of FM 1173; east and west of Barthold Road Acres: 465.37 PAM General Location: South side of Milam Road; north of Loop 288; east of 1 -35; west of Locust Street Acres: 1105.70 DH1 General Location: South side of FM 2449; west side of John Paine Road Acres: 261.65 DH 2 General Location: South side of University Drive; north side of Jim Christal Road; west and east sides of Thomas J. Egan Road; west of Masch Road Acres: 203.94 DH 3 General Location: South side of Spring Side Road; north, south and west of Corbin Road; east side of Underwood Road; west of 1 -35 Acres: 279.61 DH 4 General Location Boulevard Acres: 274.16 DH 5 General Location Acres: 321.64 DH 14 General Location Acres: 2.26 East side of Bonnie Brae Street; west of Fort Worth Drive; east and west of Vintage North side of Brush Creek Road; west side of Country Club Road South side of Robinson Road; east of Thoroughbred Trail; west of Marbella's Court CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 16 -187, Version: 1 Agenda Information Sheet DEPARTMENT: Legal CM/ ACM: Anita Burgess, City Attorney Date: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton finding and declaring a restriction contained in the 1933 deed between the IOOF and the City of Denton convening the said cemetery to the City of Denton prohibiting the use of the said cemetery for the burial of non -white persons to be illegal, unenforceable, unconscionable, contrary and repugnant to the philosophy, principals and beliefs of the City of Denton and that the said restrictive language shall not be enforced or recognized on any city -owned or managed property and providing an effective date. BACKGROUND In 1933, a deed between the IOOF and the City of Denton conveyed title to the IOOF Cemetery to the City of Denton. The said deed contained a restriction that the said cemetery shall be used for the burial of white persons only. In 1948, the United States Supreme Court, in Shelley v. Krainer, held that courts could not enforce racial covenants on real estate because such action would be contrary to the United States Constitution, including the equal protection clause of the Fourteenth Amendment. The City Attorney's Office recommends adoption of an ordinance declaring, inter alia, the said restrictive language to be unenforceable. OPTIONS Approve the ordinance as proposed, not approve the ordinance, or make modifications. RECOMMENDATION Adoption of Ordinance EXHIBITS Exhibit I - Ordinance Respectfully submitted: Anita Burgess City Attorney City of Denton Page 1 of 1 Printed on 1/28/2016 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON FINDING AND DECLARING A RESTRICTION CONTAINED IN THE 1933 DEED BETWEEN THE INDEPENDENT ORDER OF ODD FELLOWS AND THE CITY OF DENTON CONVEYING THE SAID CEMETERY TO THE CITY OF DENTON PROHIBITING THE USE OF THE SAID CEMETARY FOR THE BURIAL OF NON -WHITE PERSONS TO BE ILLEGAL, UNENFORCEABLE, UNCONSCIONABLE, CONTRARY AND REPUGNANT TO THE PHILOSOPHY, PRINCIPALS AND BELIEFS OF THE CITY OF DENTON AND THAT THE SAID RESTRICTIVE LANGUAGE SHALL NOT BE ENFORCED OR RECOGNIZED ON ANY CITY -OWNED OR MANAGED PROPERTY AND PROVIDING AN EFFECTIVE DATE. WHEREAS, in 1933, a deed between the IOOF and the City of Denton conveyed title to the IOOF Cemetery to the City of Denton; and, WHEREAS, the said deed contained a restriction that the said cemetery shall be used for the burial of white persons only; and, WHEREAS, in 1948 the United States Supreme Court, In Shelley v. Kramer, held that courts could not enforce racial covenants on real estate because such action would be contrary to the United States Constitution including the equal protection clause of the Fourteenth Amendment; and, WHEREAS, the City of Denton has not enforced said deed restriction since at least 1948; however; some citizens remain concerned about the deed language; and, WHEREAS, the City Council of the City of Denton finds and declares that the said restrictive language is illegal, unenforceable, unconscionable, contrary to the philosophy, principals and beliefs of the City of the City of Denton, and will not be enforced or recognized on any city owned or managed property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The above recitals are hereby found and declared to be true and correct and are adopted herein for all purposes in their entirety. SECTION 2. The language contained in the 1933 deed between the IOOF and the City of Denton that the said cemetery shall be used for the burial of white persons only is found and declared to be illegal, unenforceable, unconscionable, contrary and repugnant to the philosophy, principals and beliefs of the City of Denton. SECTION 3. The said restrictive language shall not be enforced or recognized on any city owned or managed property. SECTION 4. This ordinance shall be effective immediately upon it passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY li APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r BY: a City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -188, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Legal Department CM/ ACM: Anita Burgess Date: February 2, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing authorization of an Interlocal Cooperation Agreement between the City of Denton, Texas ( "City ") and Denton County, Texas ( "County ") regarding the County's use of the City's dark fiber facilities; and providing for an effective date. BACKGROUND This is a consolidation of two earlier Interlocal Cooperation Agreements regarding the County's use of the City's dark fiber facilities. OPTIONS Disapprove; postpone; recommend. RECOMMENDATION Recommend approval. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Choose an item. Related Goal: Choose an item. EXHIBITS 1. Ordinance /Agreement Respectfully submitted: City of Denton Page 1 of 2 Printed on 1/28/2016 File M ID 16 -188, Version: 1 Anita Burgess City Attorney Prepared by: Larry Collister Deputy City Attorney City of Denton Page 2 of 2 Printed on 1/28/2016 h rvvm d by I cx:ls i''I S:A[.egal \Our Documents \Ordinances\16 \County 1CA Ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR AUTHORIZATION OF AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS ( "CITY ") AND DENTON COUNTY, TEXAS ( "COUNTY ") REGARDING THE COUNTY'S USE OF THE CITY'S DARK FIBER FACILITIES; AND PROVIDING FOR AN EFFECTIVE DATE. 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 Mayor, or his designee, is hereby authorized to execute the Interlocal Cooperation Agreement, attached hereto and incorporated herein, and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 1 lit INTERLOCAL COOPERATION AGREEMENT (Dark Fiber) THIS AGREEMENT is effective October 1, 2015, by and between the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (hereinafter the "CITY "), and DENTON COUNTY, TEXAS (hereinafter the "COUNTY "), each organized and existing under the laws of the State of Texas, acting by and through and under the authority of their respective governing bodies and officials; and WHEREAS, the CITY and COUNTY are local governmental entities organized under the laws of the State of Texas, and both of whom have the authority to perform the services set forth in this Agreement individually, and who mutually desire to enter into an interlocal cooperation agreement for the purposes herein stated, as provided for in Chapter 791 of the Texas Government Code, in order to maximize the benefits to the citizens of the CITY and of the COUNTY to be derived from each taxpayer dollar expended; and WHEREAS, the CITY has heretofore constructed a fiber optic system that is operated by Denton Municipal Electric ( "DME ") in order to provide a dependable, secure, and cost - effective communications path for the monitoring and protection of its electric utility system, which fiber optic system is in place and operational, and covers significant portions of the City of Denton, Texas; and WHEREAS, the provisions of §54.2025 of the Texas Utilities Code expressly allow and permit the lease of excess capacity of the CITY'S dark fiber optic facilities, provided that the rental is done on a nondiscriminatory, non - preferential basis; and that the provisions of Texas law do not presently allow or permit the use by COUNTY of the CITY'S "lighted" fiber facilities, and accordingly, CITY and COUNTY expressly understand and recognize that only "dark" fiber facilities are being leased to the COUNTY hereunder; and WHEREAS, there exists a limited amount of excess capacity on the City's fiber optic system; and the COUNTY has not heretofore constructed any fiber optic system of its own in order to interconnect some or all of the COUNTY's facilities, largely due to the cost of constructing such a system. The COUNTY, in order to improve the County's data and information services, desires to continue to lease excess dark fiber optic capacity from the CITY's system for use in its computer network, for the purpose of interconnecting the COUNTY's facilities on a fiber optic system, which the COUNTY believes provides for the improved efficient exchange of data; and WHEREAS, the CITY and COUNTY desire to pool their respective resources, to avoid unnecessary or duplicitous expense, and to take mutual advantage of maximizing economies of scale, resulting in cost savings to their respective taxpayers; and WHEREAS, the CITY is willing to continue to lease excess dark fiber optic system capacity to COUNTY, for use by the COUNTY, for another term, utilizing that fiber optic cable provided by and installed by the CITY as provided in this Interlocal Cooperation Agreement. The CITY and COUNTY by this Interlocal Cooperation Agreement (the "Agreement ") express their mutual understanding that the relationship to be created by implementation of this Agreement is that of two local governmental entities sharing a private telecommunications network; and WHEREAS, there is a valid governmental purpose served by this Agreement by the CITY and COUNTY to provide high technology communications capability for the COUNTY in order that COUNTY may interconnect its facilities to provide enhanced services to the residents of the COUNTY, as well as to the COUNTY's governmental support and administrative functions; and WHEREAS, the CITY and COUNTY agree that all payments made in connection with governmental functions provided for by this Agreement shall be made from current revenues available to the paying party in accordance with the provisions with the provisions of §791.011(d)(3) of the Texas Government Code, and that the payments received are fair and adequate and fairly compensate the performing party for the services or functions performed, in accordance with the provisions of §791.011(e) of the Texas Government Code; and WHEREAS, the CITY and COUNTY agree that the amounts established as the fees and rates under this Agreement represent a fair consideration for the services furnished, and that the fees and rates have been negotiated by the CITY and COUNTY after considering all the relevant factors; and that the services to be rendered and the fees and rates to be charged for the services are not regulated by the Public Utility Commission of Texas; and that the services to be rendered are not analogous to or subject to, in any manner, the furnishing of telephone services from the CITY to the COUNTY; and WHEREAS, the CITY and COUNTY have carefully determined and hereby establish the rates to be charged hereunder and have taken into account, all relevant factors known to them, including without limitation, construction cost and other relevant factors, and desire that the negotiated fees and rates of this Agreement fairly reflect all of the relevant issues known to or anticipated by both parties, who mutually desire to set fees and rates for the lease of dark fiber facilities for the entire term of this Agreement; and WHEREAS, the CITY and COUNTY heretofore entered into Interlocal Cooperation Agreements (Denton City Ordinances No. 2005 -0220 and No. 2007 -0195; hereafter "Agreements ") wherein the CITY leased dark fiber excess capacity to the COUNTY for a defined term of years; and such earlier Agreements have either expired or automatically renewed; WHEREAS, the CITY and COUNTY desire to mutually terminate the Agreements and to replace same with a five -year Interlocal Cooperation Agreement; and WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code, authorizes the CITY and the COUNTY to enter into this Agreement for the purpose of achieving the governmental functions and providing the services represented by this collective, cooperative undertaking; and NOW THEREFORE, the CITY and COUNTY, for and in consideration of the premises and the mutual covenants set forth in this Interlocal Cooperation Agreement, and pursuant to the authority granted by the governing bodies of each of the parties hereto, in accordance with §791.011(d)(1) of the Texas Government Code, do hereby AGREE as follows: 2 ARTICLE I INCORPORATION OF PREAMBLES The preamble to this Agreement is wholly incorporated into this Agreement and the recitations contained therein are found and determined to be true and correct. ARTICLE II SCOPE OF AGREEMENT A. COUNTY intends to continue utilizing the leased dark fiber optic cable owned by and provided by the CITY, which is contained in Paragraph II.C. below. The COUNTY will own and provide all of the electronic equipment needed to implement its wide -area network at its sole cost and expense. B. CITY and COUNTY agree that CITY may lease its dark fiber optic excess capacity to others, and that this Agreement is non - exclusive in nature. C. The leased dark fiber optic cable owned by the CITY, the "fiber pair" as referred to in this Agreement, consists of the following specific COUNTY sites centered on the County Courts Building at 1450 East McKinney Street. The dedicated fiber pairs are to originate from the County Courts Building (the "Hub Facility ") to: 1) the Denton Museum at 317 West Mulberry; 2) the Denton County Courthouse on the Square at 110 West Hickory Street; 3) the Joseph Carroll - Denton County Office Building at 401 West Hickory Street; and 4) the DPS Office at 820 N Loop 288. D. The CITY shall furnish at the CITY's own cost and expense, except as otherwise provided herein, all labor, services, and material for the creation, construction, and completion of the fiber pair and all additional lines emanating therefrom as provided within this Agreement. E. The CITY shall furnish at CITY's own cost and expense, except as otherwise provided herein, all labor, services, and material relating to the termination of the fiber optic cabling with "ST" style connectors into patch panels at each of the COUNTY sites. The exact point of demarcation or placement of the patch panel at each of the COUNTY sites shall be mutually determined by the CITY and COUNTY, which determination shall be evidenced by a letter signed by authorized representatives of the CITY and COUNTY. F. COUNTY shall furnish, at COUNTY 's own cost and expense, unless otherwise provided herein, all labor, services, and material necessary for the installation and connection of COUNTY's electronics equipment (not to include "ST" connectors) to the patch panel at the point of demarcation at each of the COUNTY sites. G. COUNTY shall promptly provide the CITY with any additional instructions, by means of drawings or by other written documents, as the CITY may require in order to be able to proceed with the work as provided for in this Agreement. All such drawings and written documents shall be consistent with, and reasonably inferable from this Agreement. H. CITY and COUNTY agree that the CITY's service to COUNTY is limited to a point -to- point dark fiber connectivity. CITY and COUNTY further agree that COUNTY's use of the fiber pair shall be limited to COUNTY personnel; that the fiber pair leased to COUNTY shall transmit data only; and, that COUNTY will not offer access to the fiber pair to the public. ARTICLE III TERM OF AGREEMENT A. With respect to the fiber pairs referenced in Article II. C. 1 -3, this Agreement shall be effective as of October 1, 2015 and shall continue in force and effect for a term of five (5) years from the effective date. The parties shall be deemed to have elected to renew this Agreement annually on the anniversary of the effective date of this Agreement unless the parties each elect to terminate this Agreement, as permitted under the provisions of Article IV hereunder. If any facility is added during the term of this Agreement it is expressly understood that the term of this Agreement shall apply. B. With respect to the fiber pair referenced in Article II. C. 4, this Agreement shall be effective as of October 1, 2015 and shall continue in force and effect month -to- month. The parties shall be deemed to have elected to renew this Agreement monthly on the Is' of each month unless the parties each elect to terminate this Agreement, as permitted under the provisions of Article IV hereunder. If any facility is added during the term of this Agreement it is expressly understood that the term of this Agreement shall apply. ARTICLE IV TERMINATION OF AGREEMENT A. The parties agree that neither party may terminate this Agreement, except as allowed by Article IV. D., during the term thereof unless it is determined by the CITY that the lease of dark fiber by CITY is prohibited by law. CITY and COUNTY mutually understand that if any change of law provides that the CITY's lease of excess dark fiber optic facilities to COUNTY becomes illegal or unlawful, that the CITY has the right to immediately cancel the remaining term of this Agreement and disconnect its fiber pair facilities from the COUNTY's equipment. B. Either party hereto may terminate this Agreement for cause by reason of the other party's material breach or default in the performance of this Agreement. The party seeking to terminate this Agreement under this provision shall provide the defaulting party written notice, specifically identifying the breach or default complained of, which notice shall provide the defaulting party a period of not less than thirty (30) days from the date of receipt of such notice in which to cure such breach or default. In the event such breach or default is not fully cured within the time period specified, then the party seeking to terminate this Agreement shall provide the defaulting party with further written notice expressly specifying that this Agreement will be terminated if the breach or default is not wholly cured within not less than ten (10) days after the receipt of the further written notice by the alleged defaulting party. In the event that the defaulting party fails to cure the breach or default complained of, within the time specified, then this Agreement shall be terminated, and the party terminating this Agreement may seek appropriate legal relief. C. At the time of expiration or termination of this Agreement, the relationship between the CITY and COUNTY regarding the leased fiber pair shall immediately cease, and the CITY shall thereafter remove all fiber optic connections at the COUNTY sites in a careful, prudent manner. The timeline for removal will be determined by the City and be performed during normal business hours. D. COUNTY may terminate the use of fiber pair referenced in Article II.C.4. upon fifteen (15) days written notice to the CITY. ARTICLE V CONSIDERATION TO BE PAID BY COUNTY TO THE CITY OF DENTON A. COUNTY shall pay to the CITY, beginning on the effective date of this Agreement, as identified in this Agreement, a monthly payment of $1,870.00, and shall continue to pay such monthly payment amount to the CITY on the same date of each successive month thereafter, for the primary term of this Agreement, so long as this Agreement is in force and effect. The monthly lease payment rate of $1,870.00 per month takes into account a 45% discount from the standard rate of $3,400 per month, because of the COUNTY'S willingness to obligate itself to the CITY for a five -year term by this Agreement. This monthly payment is based upon the rate for the basic fiber optic cable pair furnished by the CITY to each site, all as depicted and set forth in Exhibit "A" attached hereto and incorporated herewith by reference. If additional facilities are added to this Agreement the additional monthly payment shall be calculated in accordance with the provisions expressed in this Article V. If the use of fiber pair referenced in Article II.C.4. is terminated the COUNTY'S monthly payment shall be $1,199.00 per month for the remainder of the term of this Agreement. B. The CITY and COUNTY contemplate that the fiber pair lease provided for in this Agreement will possibly be expanded in the foreseeable future as the number of COUNTY facilities increase, move, or change. Accordingly, the CITY and COUNTY desire to remain flexible and provide for such eventuality and agree that any new COUNTY facility may be added to the list of fiber pair facilities network at a rate of $400 per fiber pair, per month, per mile, per new facility, plus a building charge of $180 for a total rate of $580 per month, for the first mile for each new facility; with a minimum one -mile connection charge for each new facility, being $580 per month. The rates stated in this Article V.B. are only applicable if any new COUNTY facilities are along the CITY'S established fiber paths. After the first mile connection charge of $580, rates are calculated on a one -tenth of a mile basis, beginning with one -mile per each new facility. C. The CITY shall, at its sole option, decide within sixty (60) days of COUNTY'S application for adding additional fiber pair facilities, whether it desires to extend such fiber pair as requested. Such requests will be considered on a case -by -case basis. The CITY and COUNTY expressly stipulate and understand that the CITY may not extend fiber pair facilities outside of the city limits of the CITY. D. The COUNTY may, after the expiration of the first year of the term of this Agreement, and upon ninety days further advance written notice, elect to disconnect a particular facility from the fiber pair facilities because a facility no longer serves a COUNTY function. The CITY is willing to consent to such disconnections totaling a maximum of three (3) occurrences during the remaining term of this Agreement, and will allow the COUNTY to connect a new facility in place of the disconnected facility. It is understood that the rental payment for the disconnected facility shall continue until such time as the new replacement facility has been added as a covered rental - paying facility under this Agreement. At the time of addition of a new facility to this Agreement (in lieu of the disconnected facility), COUNTY will no longer be liable for rental on the disconnected facility. In the event the COUNTY elects not to establish a fiber pair connection to a new facility, then the COUNTY would still be financially liable to the CITY for the rental for the disconnected facility until the term of the Agreement has expired. E. It is agreed and understood that the option of the COUNTY regarding the termination of a facility, and its replacement by a new COUNTY facility, contained in Article V.D. hereinabove, may only be exercised by the COUNTY three (3) times during the term of this Agreement. F. The monthly rental payments provided for in this Article V are due and payable to the CITY at: Denton Municipal Electric, 1701 -C Spencer Road, Denton, Texas 76205; or at such other address which the CITY may inform the COUNTY of in writing. G. The CITY does not require that COUNTY pay to CITY any security deposit respecting this Agreement. ARTICLE VI COMPLETION OF CONNECTION /FIBER PAIR The CITY may utilize such persons as may be necessary to act as inspectors or agents for the purpose of supervising, in the interest of the CITY, the materials furnished and the work done by COUNTY as any construction involved in this project proceeds. ARTICLE VII ACCEPTANCE OF THE CONNECTIONS BY COUNTY The CITY agrees to submit to COUNTY sufficient test data respecting all aspects of tine connection (the fiber pair) in order to establish satisfactory performance prior to utilization of the connections and acceptance by COUNTY. Once any such requested testing is complete and the COUNTY reasonably approves the test results, the COUNTY's acceptance of the fiber pair is complete. Acceptable test results will be defined as follows: The end -to -end optical budget of the fiber segment should not exceed 9db. The fiber cable shall support both wavelengths at 1310 and 1550 nanometers. The COUNTY reserves the right to have fiber performance tested by an independent test organization for conformance with the optical specifications stated above. A hard copy of the final document, consisting of a complete set of end -to -end power attenuation and Optical Time Domain Reflector ( "OTDR ") readings for each single -mode fiber end at 1310 and 1550 nanometers, shall be provided to the COUNTY along with the actual cable route and total footage for each fiber segment. ARTICLE VIII USE OF PROPRIETARY INFORMATION All data exchanged between CITY and COUNTY in connection with this Agreement or in utilization of the fiber pair, which is identified as proprietary information, shall be safeguarded by CITY and COUNTY to the same extent as the CITY or COUNTY safeguards like information relating to the CITY's or COUNTY's own business. If, however, such data is publicly available under the Public Information Act (Chapter 552 of the Texas Government Code) or other applicable laws, is already in either party's possession or known to either party, or was rightfully obtained by either party from third parties, neither CITY or COUNTY shall bear any responsibility for its disclosure of such information, inadvertent or otherwise. CITY acknowledges that certain data is peculiar to COUNTY and which contains personally identifiable information. CITY agrees that in the event that such data comes into CITY's possession that CITY shall not disclose to any individual or entity any personally identifiable information of COUNTY, unless the CITY is required to disclose this information as a result of an Order issued by a Court of competent jurisdiction. ARTICLE IX OWNERSHIP AND CONTROL OF PROPERTY A. The CITY shall own and maintain all fiber optic cables that terminate at the points of demarcation at each COUNTY site. B. COUNTY shall own and maintain all electronic equipment located at each COUNTY site. C. COUNTY shall have the right to utilize the leased dark fiber optic cables comprising the fiber pair, so long as this Agreement is in force and effect. COUNTY agrees that it will not sell, lease, alienate, or otherwise assign bandwidth to any other party. COUNTY further agrees that its use of the fiber pair will be consistent with that of a private -line service user, and that COUNTY shall not offer access to the fiber pair to the public, and the COUNTY shall take reasonable actions to establish procedures and protocols to assure that only authorized COUNTY personnel access the fiber pair. ARTICLE X RESPONSIBILITY FOR MAINTENANCE The COUNTY shall be solely responsible to determine the location of any problem within the COUNTY electronics network and to remedy such problem at COUNTY's sole cost and expense. In the event that a problem arises solely within the fiber optic cable (any additional lines emanating from the core) or connections at any patch panels, COUNTY shall promptly notify the CITY and the CITY shall resolve the problem in a timely and cost - efficient manner at the CITY's sole cost and expense. The CITY covenants to commence repairs within one (1) hour of actual notification from the COUNTY, which repairs shall be completed as expediently as possible, utilizing where possible spare resources from the CITY's perpetual inventory. "As expediently as possible" for purposes of this Article shall mean in a time period of twelve or fewer hours following actual notification of the request to the CITY by the COUNTY. If a circuit repair or problem takes the CITY greater than twelve hours to complete, then for each 24 hour period thereafter, the parties agree that the COUNTY may deduct for that particular circuit, the sum equal to 3.5% of the net "Monthly Payment" as specified in Exhibit "A" attached hereto, for the next month of this Agreement, for each 24 hour period thereafter, until the repair or problem to that circuit is completed. ARTICLE XI CITY MAINTENANCE OF FIBER OPTIC CABLE In the event that the CITY determines that it is reasonably necessary to perform maintenance on the fiber optic cable or within the CITY's network, then the CITY shall notify COUNTY at least twenty -four (24) hours in advance, if reasonably possible, of any periods of time the CITY determines is necessary for CITY's network to be down. ARTICLE XII DISASTER RECOVERY In the event of a disconnection of the fiber pair due to a natural disaster, such as a tornado, flood, or other catastrophic event, the CITY will re- establish connections to COUNTY at the earliest reasonable opportunity, taking into account, however, that the safety and welfare of the citizens of the CITY shall be the CITY's utmost priority in determination of restoration of service. ARTICLE XIII HOLD HARMLESS To the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation as to liability, COUNTY agrees to and shall indemnify and hold harmless the CITY, its officials, officers, agents, employees, or attorneys from and against any and all claims, losses, damages, causes of action, suits, and liabilities of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of or in connection with the use, but not the installation or maintenance, of the fiber pair, the subject of this Agreement, where the injury or death or damage is caused by the negligence of COUNTY, its officials, officers, agents, employees, or attorneys, except that the COUNTY assumes no liability for the sole negligent acts of CITY, its officials, officers, agents, employees, or attorneys. To the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation as to liability, CITY agrees to and shall indemnify and hold harmless the COUNTY, its officials, officers, agents, employees, or attorneys from and against any and all claims, losses, damages, causes of action, suits, and liabilities of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of or in connection with the installation or maintenance, but not the use, of the fiber pair, the subject of the Agreement, where the injury or death or damage is caused by the negligence of CITY, its officials, officers, agents, employees, or attorneys. ARTICLE XIV ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties hereto may agree to settle any disputes under this Agreement by submitting their dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or other alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XV ASSIGNABILITY COUNTY shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement to another governmental entity (whether by assignment, novation or otherwise) without the prior written consent of the CITY, which consent shall not be unreasonably withheld. COUNTY may not assign any interest in this Agreement to any other entity, other than a Texas governmental entity. CITY shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of COUNTY, which consent shall not be unreasonably withheld. CITY, likewise, may only transfer any interest in this Agreement to another Texas governmental entity. ARTICLE XVI NOTICE Any notice given by one party to the other in connection with this Agreement shall be in writing and shall be by personal delivery; sent by registered mail or certified mail; or by U.S. Mail, return receipt requested, postage prepaid; or by facsimile transmission actually received, to: CITY: City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349 -8596 and Denton Municipal Electric Communications Manager 901 -A Texas Street Denton, Texas 76209 Fax: (940) 349 -8476 COUNTY: County Judge Denton County, Texas 110 West Hickory Street Denton, Texas 76201 Fax (940) 349 -2821 Notice shall be deemed to have been received on the date of receipt as shown on the return receipt or other written evidence of receipt. ARTICLE XVII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XVIII SAVINGS In the event that any one or more of the provisions hereof concerning the subject matter of this Agreement should be held by a court or administrative agency of competent jurisdiction to be illegal, invalid or unenforceable in any respect, the parties agree to make a good faith effort to renegotiate another agreed provision to fulfill the purpose and intent of the present Agreement. ARTICLE XIX GOVERNING LAW AND VENUE This Agreement shall be construed under and governed by, and in accordance with the laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement are performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. ARTICLE XX MUTUAL TERMINATION OF PRIOR INTERLOCAL COOPERATION AGREEMENTS The Interlocal Cooperation Agreements referenced in Denton City Ordinances No. 2005- 0220 and No. 2007 -0195 are hereby mutually terminated, are of no further force effect, and that any and all obligations of the parties under these Agreements, including payment of monies, have been either satisfied or performed. ARTICLE XXI ENTIRE AGREEMENT This Agreement and the exhibits attached thereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. No amendment, modification, cancellation or alteration of the terms of this Agreement shall be binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and is duly authorized and executed by the parties hereto. ARTICLE XXII WAIVER OF TERMS AND CONDITIONS The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. ARTICLE XXIII AUTHORITY OF PARTIES This Agreement is made by and entered into by the duly - authorized officials of each respective governmental entity, upon the proper governmental authority. ARTICLE XXIV CAPTIONS The captions contained in this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Interlocal Cooperation Agreement to be executed by its duly- authorized and empowered Mayor on this the day of , 2016; and Denton County, Texas has caused this Interlocal Cooperation Agreement to be executed by its duly - authorized and empowered County Judge on this the day of , 2016, to be effective as of the I st day of October 2015. -- SIGNATURE PAGES FOLLOW -- "CITY" CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY i 12 CHRIS WATTS, MAYOR "COUNTY" DENTON COUNTY, TEXAS ATTEST: COUNTY CLERK, DENTON COUNTY, TEXAS By: APPROVED AS TO LEGAL FORM: PAUL JOHNSON, DISTRICT ATTORNEY .0 Assistant District Attorney 13 MARY HORN, COUNTY JUDGE Me r, IN C 4-a RS CJ Q V v A.. w A U V w A, •U .ry O G 0 a� 0 N L � V a o � L ctS G �U 0 a A U o000 L o000 C eC O g U ❑ .r L^ O U O a CQ d bA L c GS G o 0 0 0 U 0 0 0 0 a � AUtJA � O � N bA ca v N N 7 7 N M 3 N L m c� s U A o000 o000 O eC O �O 00 rf' g ❑ .r U Z O CQ � c G a � AUtJA U L� o000 Ri V 00 00 00 00 �a L .= a a 0 bA .- N bA ca v N N 7 7 N M 3 N L m c� s U A bA O F � g ❑ .r U Z O C c n`. � AUtJA O M � �n 0R3 Esi 0 F � O M � A L d ai+ bD 0 a 3 d � bLA C CC C � O dD F a F City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15- 0027a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: February 2, 2016 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) zoning district and use classification to a Community Mixed Use General (CM -G) zoning district and use classification on approximately 2.1 acres of land generally located at the southwest corner of West University Drive and Ector Street 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 -0027) The Planning and Zoning Commission recommended denial of this request (5 -0); therefore, in order to approve the request, a supermajority vote by City Council is required. This rezoning request was withdrawn by the applicant on January 25, 2016. BACKGROUND The applicant is requesting to rezone the subject property in order to develop two Restaurants with Drive - Through Facilities on the site. The current zoning was established during the City -wide rezoning in 2002, which resulted in a rezoning of the subject property from General Retail Service District (GR) and Office District (0) to Neighborhood Residential Mixed Use District (NRMU). NRMU District permits Restaurants, subject to the following limitations: • Service is limited to sit down only, no drive up service permitted, • No more than 100 seats, and • No more than four 4,000 square feet of restaurant area. This limitation relating to drive up service prevents the applicant from including Drive - Through Facilities in the development. Therefore, the applicant is seeking a rezoning to Community Mixed Use General District (CM -G), which permits Restaurants without limitations and Drive - Through Facilities by right. As part of this request, the applicant sought approval of an Alternative Development Plan (ADP) to enhance the proposal with specific design requirements. Per Section 35.13.5 of the Denton Development Code (DDC), an ADP provides the option to address the design criteria of Subchapter 13 through a discretionary site plan review process which includes review by the Planning and Zoning Commission. At its January 13, 2016 meeting, the Planning and Zoning Commission considered the ADP (ADP15 -0010) and voted to postpone the item until after City Council considers the zoning change. If the rezoning request is denied by City Council, then action by the Planning and Zoning Commission on ADP15 -0010 will no longer be necessary, since a drive - through facility is not permitted under current zoning. City of Denton Page 1 of 3 Printed on 1/28/2016 File #: Z15- 0027a, Version: 1 Staff has analyzed the proposal and has determined that is conforms to the conditions for approval set forth in Section 35.3.4.13 of the DDC, is compatible with the adjacent land uses, and meets the goals of the Denton Plan 2030. Upon evaluation of the existing zoning trend along the West University Corridor, it is evident that CM -G prevails with the exception of a few pockets that have an NRMU zoning designation. It can therefore be deduced from this zoning and land use pattern that this corridor heavily supports a CM -G zoning classification. The proposed CM -G District is a logical continuation of this zoning trend. The Future Land Use Designation of the subject property and the surrounding properties along West University Drive north of Emery Street is Commercial. The proposed rezoning to CM -G is consistent with this Future Land Use Designation, as the permitted uses ensure commercial development. Additionally, the property's locating on a Primary Major Arterial and an existing commercial corridor provides appropriate access and encourages development in an existing commercial activity center. A thorough analysis of the proposed CM -G District and its impacts to the surrounding area is reflected in the Staff Analysis. A neighborhood meeting was held on November 5, 2015, and approximately 11 residents attended. A second neighborhood meeting was held on January 7, 2016, and approximately 6 residents attended. Attendees at both meetings discussed the impacts that drive - through facilities could have on the adjacent neighborhood, including traffic, lighting, hours of operation, odors, and litter. To comply with the public hearing notice requirements, 11 notices were sent to property owners within 200 feet of the subject property, 43 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the subject property. As of the writing of this report, staff has received 3 responses in favor and 2 responses in opposition (24% of the area) from property owners within 200 feet of the subject property in addition to responses from outside of the 200 -foot boundary. All of the public responses received by staff are included in Exhibit 13. Written opposition to the proposed rezoning has exceeded 20% of the area within 200 feet of the subject property and the Planning and Zoning Commission recommended denial of the request. Therefore, per Section 35.3.4.C.4. of the DDC, in order for the proposal to become effective, 3/4 of the City Council members must vote to approve the request. 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 denial of this request (5 -0). The Development Review Committee recommends approval of this request. City of Denton Page 2 of 3 Printed on 1/28/2016 File #: Z15- 0027a, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) On January 13, 2016, the Planning and Zoning Commission recommended denial of the rezoning request (5 -0). STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.4 Encourage development, redevelopment, recruitment, and retention EXHIBITS 1. Staff Analysis 2. Location Map 3. Zoning Map 4. Future Land Use Map 5. Permitted Uses in Neighborhood Residential Mixed Use 6. Permitted Uses in Community Mixed Use General 7. Denton Development Code Regulations 8. Site Plan 9. Landscape Plan 10. Elevations 11. Architectural Renderings 12. Site Photos 13. Public Notification Map and Responses 14. Planning and Zoning Commission Meeting Minutes 15. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Julie Wyatt Associate Planner City of Denton Page 3 of 3 Printed on 1/28/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: Z15 -0027, Version: 1 Planning Report Z15 -0027 / Popeye's /Burger King City Council District 3 Planning & Zoning Commission January 13, 2016 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding Rezoning Request from Neighborhood Residential Mixed Use (NRMU) to Community Mixed Use General (CM -G). The subject property is approximately 2.1 acres, generally located at the southwest corner of West University Drive and Ector Street. (Z15 -0027, Burger King- Popeye's, Julie Wyatt) OWNER: Richard A. Harris APPLICANT: Jose F. Rojas, Jr., representing HRO Architects LLC BACKGROUND: The applicant is requesting to rezone the subject property in order to develop two restaurants with drive - through facilities on the subject property. The current zoning was established during the City -wide rezoning in 2002, which resulted in a rezoning of the subject property from General Retail Service District (GR) and Office District (0) to Neighborhood Residential Mixed Use District (NRMU). NRMU District permits Restaurants, subject to the following limitations: • Service is limited to sit down only, no drive up service permitted, • No more than 100 seats, and • No more than four 4,000 square feet of restaurant area. This limitation relating to drive up service prevents the applicant from including Drive - Through Facilities in the development. Therefore, the applicant is seeking a rezoning to Community Mixed Use General District (CM -G), which permits Restaurants without limitations and Drive - Through Facilities by right. As part of this request, the applicant is also seeking approval of an Alternative Development Plan (ADP) to enhance the proposal with specific site design requirements. Per Section 35.13.5 of the Denton Development Code (DDC), an ADP provides the option to address the design criteria of Subchapter 13 of the DDC through a discretionary site plan review process which includes review and consideration by the Planning and Zoning Commission. While the ADP request (ADP15 -0010) is addressed and evaluated as part of this report, this item will need to be considered for approval as a separate item. SITE DATA: The subject property has a square shape with approximately 300 feet of frontage on both West University Drive City of Denton Page 1 of 6 Printed on 1/8/2016 File #: Z15 -0027, Version: 1 and Ector Street. Currently, the site is undeveloped. USE OF PROPERTY UNDER CURRENT ZONING: The purpose of the NRMU District is to encourage a mix of high density residential units with an active area of retail and commercial services to support adjacent neighborhood areas, as described in the Denton Plan 2030. These activity centers would 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 neighborhoods and non - residential zoning districts. SURROUNDING ZONING AND LAND USES: North: Property to the north across West University Drive between Bonnie Brae and North Locust Street is zoned as Community Mixed Use General District (CM -G) and is developed with retail, offices, a hospital, restaurants, and a car wash. East: Property to the east is zoned as Neighborhood Residential Mixed Use District (NRMU) and is undeveloped. Further east, the property is zoned as CM -G District and is developed with commercial uses. A parcel to the southeast is developed with a single- family dwelling. South: Property to the south is zoned as NRMU District, Neighborhood Residential Mixed Use 12 District (NRMU -12), and Neighborhood Residential 1 District (NR -1). The property with the zoning designation of NRMU -12 District is developed with a single - family dwelling. The property with the zoning designation of NRMU is undeveloped. Properties with the NR -1 District designation are developed with single- family dwellings. West: Property to the west is zoned as CM -G District and is developed with a funeral home, retail, and office uses. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The purpose of the CM -G District is to provide the necessary shopping, services, recreation, employment, and institutional facilities that are required and supported by the surrounding community. CM -G District is intended to create a mix of uses primarily focused on commercial development, but retains a higher - intensity residential component by permitting Multi - Family Dwellings, Dwellings Above Businesses, and Live /Work Units. Since the CM -G District is intended to serve the entire community, it is typically found along Primary Arterials, which provides access to those outside of the immediate area. Furthermore, because of the moderate intensity of the district, it often abuts and serves existing residential developments and districts. The proposed zoning and associated use is therefore compatible with the surrounding zoning and land use pattern. The permitted schedule of uses is attached for reference. COMPREHENSIVE PLAN: Per the Denton Plan 2030, the Future Land Use designation is Commercial. The designation applies to concentrations of commercial uses, including regional, community, and neighborhood shopping centers. The development criteria for the Commercial Land Use should be compatibly designed with adjacent neighborhoods, address the street, and create an active public realm. Future commercial areas are maintained to accommodate existing viable commercial uses, as well as commercial uses that may not be appropriate to be located in a mixed -use format, such as auto - oriented uses, and stand -alone commercial uses to serve outlying areas of the City. Furthermore, the character of the area should be maintained by ensuring that new development is sensitive to the surrounding built and natural context. The proposed rezoning is consistent with the intent of the Future Land Use Designation. The site's location along a Primary Major Arterial provides the necessary access and activity to support CM -G District and commercial development for the entire community. City of Denton Page 2 of 6 Printed on 1/8/2016 File #: Z15 -0027, Version: 1 CONSIDERATIONS: 1. The request is to rezone approximately 2.1 acres to develop the site with two restaurants with drive - through facilities. In order to enhance the development and address concerns of compatibility with nearby neighborhoods, staff recommended that the applicant seek approval of an ADP (more fully addressed below) to bind a comprehensive development package, which includes site, landscape, elevations, signage, and lighting details. 2. Upon evaluation of the existing zoning trend along the West University Drive corridor, it is evident that the CM -G District prevails with the exception of a few pockets that have an NRMU zoning designation. It can be therefore be deduced from this zoning and land use pattern that this corridor heavily supports a CM- G zoning classification. The proposed CM -G District is a logical continuation of the adjacent CM -G to the west and along West University Drive. Commercial uses permitted in CM -G District are consistent with the existing development pattern and character along West University Drive. 3. The subject property is situated between West University Drive, a Primary Major Arterial and established retail and service corridor, and an existing single - family neighborhood. This land use pattern is not uncommon, as CM -G District is frequently located on arterial roadways, providing convenient access from residential areas to commercial uses. Two examples of this land development pattern include North University Place across West University Drive and Carroll Park, just west of the proposal. In each of these instances, residential development abuts the CM -G District and access is provided from the neighborhood secondary streets into the commercial areas. The proposed development would continue this land development pattern of orienting commercial development toward Primary Arterials with neighborhood adjacency. 4. While the commercial uses permitted in CM -G District are more intense than in NRMU District, the bulk and dimensional requirements for CM -G District are similar to those in NRMU District. This could result in a similar development pattern if the rezoning is approved. For example, in both districts, maximum lot coverage is 80% and maximum height is 65 feet. A table comparing the General Regulations for NRMU and CM -G is attached for reference. 5. The Future Land Use Designation of the subject property and the surrounding properties along West University Drive north of Emery Street is Commercial. The proposed rezoning to CM -G District is consistent with the Future Land Use designation, as the permitted uses ensures commercial development. Additionally, the property's location on a Primary Major Arterial and an existing commercial corridor provides appropriate access and encourages development within an existing commercial activity center. 6. Per Section 35.3.4.13 of the DDC, zoning changes may be approved if the proposed rezoning conforms to the Future Land Use element of the Denton Plan 2030, and that the proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. The proposed CM -G District conforms to the Denton Plan 2030 and can facilitate adequate provision of transportation and public facilities. 7. The subject property's adjacency to an established single- family neighborhood raised neighborhood concerns regarding compatibility, appropriate buffers, architectural details and materials, lighting, signs, litter, and access. In response to those concerns, the applicant has worked with staff to develop an ADP in an effort to incorporate site elements that will enhance and improve compatibility with the residential areas in close proximity to this site. 8. The goal of an ADP is to ensure a high - quality development. Although often used as a mechanism to provide relief to the standards identified in Subchapter 13, the purpose of an ADP is to provide a flexible mechanism to achieve a high quality development that meets established criteria and satisfies the intent of Subchapter 13. The comprehensive site design package comprise: a. Screening: The proposed ADP reflects a 6 -foot masonry wall along the south property line to minimize the visual impact of the development. This opaque screening mechanism could also potentially mitigate City of Denton Page 3 of 6 Printed on 1/8/2016 File #: Z15 -0027, Version: 1 light pollution from vehicles accessing the site. Trees and landscaping are also proposed to screen the menu boards and dumpster enclosures from adjacent residential development. b. Landscaping: The DDC requires 20% total landscape area and 30% tree canopy and no screening along West University Drive. The applicant shall provide 29% total landscaped area, 59% tree canopy, and a 15 -foot landscaped area along West University Drive. The intent is to soften the buildings and drive - through facilities and to provide additional screening of the site from the right -of -way. c. Lighting: The ADP reflects light fixtures designed to prevent upward diffusion and there shall be no glare emanating from the property line. d. Transportation: Per DDC Section 35.20.4.1), if reasonable access can be provided from a lesser classified street, then no access shall be granted to an arterial. In this instance, access is proposed from both West University Drive and Ector Street. This will improve vehicular circulation on the site and potentially limit congestion at either access point. To accommodate additional modes of transportation, bicycle parking shall be provided for each restaurant and crosswalks have been added to provide safer pedestrian access. e. Elevations: The ADP reflects masonry (stone veneer) as a building material exceeding the DDC requirements for commercial buildings. f. Signage: In lieu of two 20 -foot high pole signs on West University Drive, the applicant has provided two 6 -foot monument signs on West University to reduce sign clutter. 9. The proposed ADP satisfies the Criteria for Approval for an ADP, which identifies the following goals and objectives to be met, and by which the proposal will be judged. a. Preserve Existing Neighborhoods. b. Assure quality development that fits in with the character of Denton. c. Focus new development to activity centers to curb strip development and urban sprawl. d. Ensure that infrastructure is capable of accommodating development prior to the development occurring. e. Ensure that the developer's alternative proposal results overall in a high quality development meeting the intent of the design standards in this Subchapter. f. Ensure that infrastructure is capable of accommodating development prior to the development occurring. Ensure that the developer's alternative proposal results overall in a high quality development meeting the intent of the design standards in this Subchapter. STAFF RECOMMENDATION: Z15 -0027 Staff recommends approval of the rezoning request from NRMU to CM -G, as it is compatible with the surrounding land use pattern and is consistent with the goals and objectives of the Denton Plan 2030. ADP15 -0010 Staff recommends approval of the ADP, as it addresses the Criteria for Approval of an ADP and meets the goals and objectives established for an ADP with the following conditions: 1. Development of the proposed Popeye's Louisiana Kitchen and Burger King Restaurants shall conform to the attached Site Plan, Landscape Plan, and Elevations, including: A. 59% Tree Canopy cover B. 29% Landscaped Area C. 15 -foot landscaped area along West University Drive D. Foundational plantings along the Popeye's building City of Denton Page 4 of 6 Printed on 1/8/2016 File #: Z15 -0027, Version: 1 E. Trees and landscaping screening the menu boards from the residential development across from Ector Street F. Two 6 -foot monument signs along West University Drive G. No ground signs permitted on Ector Street H. 6 -foot masonry screening wall along the south property line to screen the development from the adjacent residential development L Bicycle parking at both restaurants. J. Trash cans located at the exit of the drive - through lines K. Photometric study showing the proposal exceeds the permitted .5 foot - candle at the property line L. Crosswalks from the sidewalk along West University Drive to the front of the buildings M. Percentages of stone veneer on the elevations range from 7% in less visible areas to 63% in highly visible areas. N. Building materials with a muted color palette compatible with residential development O. Second access off of West University Drive 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, 14 notices were sent to property owners within 200 feet of the subject property, 43 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. A neighborhood meeting was held on November 5, 2015, and approximately 11 residents attended. A second neighborhood meeting was held on January 7, 2016, and approximately 6 residents attended. Attendees at both meetings discussed the impacts that Drive - Through Facilities could have on the adjacent neighborhood, including traffic, lighting, hours of operation, and litter. 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: Site Location October 21, 2015 October 21, 2015 November 6, 2015 November 12, 2015 10 days 0 days 10 days • Zoning Map Future Land Use Map • Permitted Uses in Neighborhood Residential Mixed Use • Permitted Uses in Community Mixed Use General • Denton Development Code General Regulations Site Plan City of Denton Page 5 of 6 Printed on 1/8/2016 File #: Z15 -0027, Version: 1 • Landscape Plan • Elevations Architectural Renderings Site Photos • Notification Map Respectfully submitted: Beverly Zendt, AICP Development Review Committee Administrator Prepared by: Julie Wyatt Associate Planner City of Denton Page 6 of 6 Printed on 1/8/2016 14P 11 ,$ { # J - 4 AN, All �` �` IIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIII `} '�� __ *, IIIIIIIIIIIIIIIIIIAIIIIIIIIIIIIIIIIII iy l.. �* IIIIIIIIIIIIIIIII�IIIIIIIIIIIIIIIII 't ) ;x i..; � g' �s! (2 � 3 IIIIIIIInllllllllnlllllllnnllllll C4. 3},� e I = .. �r' ;.��e45$$�,,;;i_ �5 r`� I r ra'l t{itt 3r'''y`•^s} f! - s �"f'? 37 ��'♦ P�'yr5i�S 4 lxtT `'r� ��4�r ��`S i�'r� !'Q.a 'i S� c r" JG}.� • }r.1�'Yr� `�s�p }�'y�y,��� Y`J� 1-Ff -fix '.rx k,� �'�!-��rz � -' Site Photos Looking west from the corner of Ector Street and West University Drive Looking east from the corner of Ector Street and West University Drive Looking north from the corner of Ector Street and West University Drive Looking south from the corner of Ector Street and West University Drive Looking northwest toward the subject property and across West University Drive Looking south from the corner of Ector Street and West University Drive Z15 -0027 Site Location / Notification Map 600ft Buffer a 0 200ft III:..: u ffe r 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. Neighborhood Property Owners Oppose Z15 -0027 Existing Zoning Reflects Our Unique Neighborhood Our History The subject property is part of one of Denton's oldest planned subdivisions. Dr. H. Ector Roberts platted out Ector Street in the 1940's as an address to rival Oak Street, with big lots, deep setbacks, and tree -lined parkways. The subject property was set aside for a church. Until the mid- 199-0's all lots from Sena�St. to- University, including the subject property, were deed restricted from commercial development. Today, ours is one of the few NR -1 neighborhoods in Denton. Thus, NRMU is the most appropriate commercial designation for the subject property. Our Homes Our homes are majority owner - occupied and are rising in value. Several families still live in the homes they built over 50 years ago, including one within 200 feet of the proposed development. Another home close by was the KDB Yard of the Month for September 2015. Our Culture We have always been a diverse mix of doctors, lawyers, professors, professionals, blue collar families, young families, and retirees. We are an incubator of culture and home to St. David's Episcopal Church, musicians, and artists. Successful Denton screen printers Pan Ector Industries launched here. Current Zoning Allows Appropriate Development • We agree that commercial development is the best use of the subject property. • NRMU is consistent with the Denton's land use plans and the existing commercial corridor. • NRMU allows appropriate commercial development, which we support. • NRMU zoning has not hampered development. Local investors and business owners tell us directly that above - market pricing kept them from purchasing the otherwise attractive subject property. Drive -thru Fast Food Harms Our Neighborhood and Our Property Values • Drive -thru fast food within 200 feet of our homes would undeniably result in more traffic, more trash, more light pollution, and more odors in our neighborhood. • The proposed development would lower residential property values. Aging citizens especially rely on the rising value of their homes. Young families are just beginning to invest in Denton. • Fast food doesn't fit the commercial landscape, next door to a funeral home on a block of 8 -5 businesses. • Drive -thru restaurants are not a longterm investment in our community. Throughout Denton former fast - food restaurants now house payday lenders and used car dealerships. • The mistakes made before Denton got serious about city planning — allowing drive -thru fast food near other homes —do not justify new mistakes today. The Community is United Against Rezoning • More than 20% of the lot owners within 200 feet of the subject property oppose rezoning. • More than 70 homeowners and residents have signed a petition against rezoning, more than 15 of us have filled out protest forms, and our Facebook page has more than 100 likes. • Commercial property owners oppose rezoning. These include the adjacent DeBerry Funeral Home and Luigi's Restaurant, and St. David's Episcopal Church on Ector Street. 01/11/201.6 11:26AN FAX 9403801626 DEBERRY FIMMAL DIRECT In order for your opmllem to be counb* picne coompkee this form and maft to: Depamnmt of Dev Savices Attn: Julie WyaM Pro jmt Managcr 221 N Elm Stn=t Denton., TX 76201 You may abo emafd or f im a ce" to: EmaU.- jWie.wyaUWtyofdcntm.com s( Project No: Z154W27 plem circk onel: in favot of aqucst Ncuftg to mp:g Commenft: 1� @0002 I am OPPOSed to havinq a chicken shack- a a hamberger, stand next door to my ty. or doctors office nexL door Signature: hinted Name, "I Bil I DeBerry MailingAddrcss: 20,25 W,,,, Uniiiiersity n1r. 11 . .............................. .... . . ..... ............ C"ity, Slate zip: 1)enton, T111:11timas '7115202, ............ ...................... . Phone Numbm 940 3133-4200 ----------- f-m"10 Axidr�i�s'-,' ----- ------ ---- I., . ................................ . . -------------- . . . .......................... Physic�dAddressof NopertywithinM) feet: dolor For spccific iii Zogmation please yef, � to, 'tour 011ty''s °lwebsite (sec fink Inlow) fbi'� sLiff 11's analysiii,, 71ve staff analysiswill tm posted o,n Januan; gth,,�201 16'. I li I-A&AA )1!),A,,L, U —M a VU! :, I A I UUVi '"6,6D,ri YVINPNO'Cawforntomcmn 01/11/2016 11:26AN FAX 9403801626 D FUNERAL DIRECT ATTN: Julie Wyatt RE: ProjectZ15-0027 Bill DeBem, Sr. rw- Im W att, Julie A. From: Luto <begajl @yahoo.com> Sent: Wednesday, January 13, 2016 12:31 PM To: Wyatt, Julie A. Subject: Re: Notification Letter for Z15 -0027 We opposed, Thank you . Luigi. Sent from my iPhone On Jan 8, 2016, at 1:28 PM, Wyatt, Julie A. <Julie.Wvatt @cityofdenton.com> wrote: Please indicate your position (favor, neutral, opposed) and fill out the attached form prior to January 13, 2015 and return to the City. We will provide your response to P &Z and City Council. Thank you. Sincerely, Julie Wyatt Associate Planner Department of Development Services City of Denton Phone: 940.349.8585 Fax: 940.349.7707 email: julie.wyatt(@cityofdenton.com <200 ft Notice of Public Hearing- PZ.docx> In order for your opinion to be counted, please complete this form and inail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt @cityofdenton.com Fax: (940)349 -7707 Project No: Z15 -0027 Please circle one: In favor o f request q est Neutral to request Opposed to request Comments: Signature: . . �, ��.� �� �. ..... r ' �3 - - -- o1 Printed Name.... �� .. _ ... -. Mailing Address: � � u _ - - City, State Zip:._ _-. -_- Phone Number: °� . �� ..... ........ Email Address: � 1`4 .. „.... � Physical Address .. " of Property within 200 feet �� mm �� - � 1 .... 111111--- For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. p4�4I'CoM `�x a °l`N�9 7,�1,i G9 r���j�. "Y�, "1 �� .O4Vaw,q�.,y a" uR�i�tiBW'.d�tR lllVgr , ��,,e i„ City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt@cityofdenton.com Fax: (940)349-7707 Project No: Z15-0027 . ... .. Please circle one: Z, In favor of request )i Neutral to request Opposed to request Commeni-S:"-----'— V 7 T' M Pk/i'4 4 . .. ....... .. . .... "Jo Signature: . ...... Printed Name: Mailing Address: 'R'W.Tho�n'tor' 59og ' Wedgmont Cir N Fort Worth, TX 76133 City, State Zip: j Phone Number: .. . . . . .. . ....... Ap Email Address: I Physical Address of Property within 200 feet: For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. h, ,q)://-vv-,A,,w,6 [yo 11jen ton con,02, I C -Videos .............. .. ...... -------- City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com DqmMent of Development Services ® Julie Wyatt, Project Manager 221 N. Ehn Sbwt Denton, 7X 76201 You may also emit or fax a eOPY to'. Emil.- jufie.wYatt@cityofdentOD.cOm Fw. (940)349-7707 pmject No: ZI5-W27 Pleat drde one: I var off" e-quCst Neutral to requeg O�psed to request Commiab: eec mailing Address.- 2 --------- L,4_ ... ..... .. City, State Zip: . .... ...... Phone Numb : RM A-4 f" Plrnp. -,n �,,v vvilhn! 20() f,tel LA :'d .. .. .. .. .. .. . ..... I n t n in ra 1r IT n,o t I! V e0 se, re wCIAb"', �,e e a ff 'o d, ��n 21 0,,,�AAA) J.W. elv yr In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt@cityofdenton.com Fax: (940)349-7707 Project No: Z15-0027 Please circle one: "In favor of request Neutral to request Opposed to request C0111 tat en- ts. Signature: Printed Name: f? "" / (, , I e 0*rL6 A 1444-Vul"I . N,,...... 77 !j,' <772! "e' Mailing Address: . ......... City, State Zip: � . . . ............. .. . . ..... Phone Number: Email Address: )l .......... .. Physical Address of Property within 200 Beet: A01i . .... . ................. S.7 ...................... D6ArO ® KC7 00, "677. T-b . . ........ .. ....... . .. ...... For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt @cityofdenton.com Fax: (940)349 -7707 In favor of i,equ, es, , Comments: Signature: Project No: Z15 -0027 Please circle one: Neutral to request Opposed to request Printed Name: e.._..�.. Mailing Address: City, State Zip ...gym.,.,.,...,,.,_ °�� Phone Number: Email Address: , ..... Physical Address o roe within 2 feet: ' ".w ,bC,40 For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. 1!112 / /WvWNV.Ci ll 011,C01,11 c M �t7 rz it w prd o . City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt @cityofdenton.com Fax: (940)349 -7707 I i favor of request Comments: Signature: Project No: Z15 -0027 Please circle one: Neutral to request Printed Name:. " . . , ��_ " °'� "� � ��......... � ��� � �. °.,.� ... .... Mailing Address :. �,., �� " ° °� Q 7 1 �5, Opposed to request f City, State Zip :..�mm � ��,�� � ", 6 J. ,.m . - Phone Number- Email i,.,. „@ `, , ",. „�� �" �M... 9 0 p .,� ..� �� a� Address: 1 �.. �" � �� � �°x � '�" �� � � �' .....m� � � ��........_ .......... Physical Address of Property within 200 feet: For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. ci_y�ia.trtr trs %:z�t�ca�t %fir a�aucmtl° IcµtrTcs���� °ll:..cl�rtvdari�a.r City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityo-fdenton.com In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: J'ulle.wyatt@cityofdenton.com Fax: (940)349-7707 Project No: Z15-0027 Please circle one: hi favor of reque's', - Neutral to request Opposed to request Comments: .......... . . . \J ep �J 1r; P! .............. ... .. . . . . ... Signature: PffiiftN1 Name: Mailing Address: . ... . .... . .............. ........... ... . ........ City, State Zip: Phone Number: ............... ---- - -- - Email Address: ...... ........ Physical Address of Property within 200 feet: .,1001 V PeA,b P�zrp; t�,eeT (N-1 r, 6r7r7l /6 Da For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on January 8th, 2016. 1 /c i't -coti iici I -nendlis-111 ill "tes-Videos City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.9541 www.cityofdenton.com In order for your opinion to be counted, please c Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt@cityofdenton.com Fax: (940)349-7707 Project No: Z15 etc this form and mail to: 27 Please circle o iie: In favor of request Neutral to reqLidst Opposed to request Comments: .......... Signature: . . .. . ........... . ( �- Printed Name: r 1 1, Mailing Address: City, State Zip: _ Phone Number: Email Address: V-) r Physical Address of Property within 200 feet: Soo f v� C— I 0 �v S co LU For specific information regarding the request, please "efer to the City's website (see link below) f for staff's analysis. The staff analysis will be p, �'i January 8th, 2016. lit \VVv" c it y�) kh1 ,� W io U 1, n (-�DU �P -d- il LA44, 4z V\ City of Denton Planning Division/City Hall West/221 N. I l Street, Denton, TX 76201/940.349.8541 wwwxityoRientoli C�ttwlwn W aft, Julie A. From: Keffer, Marsha <MarshaKeffer @my.unt.edu> Sent: Sunday, January 10, 2016 3:19 PM To: Wyatt, Julie A. Subject: Z15 -0027 ToP &ZBoard Re Z15 -0027 17 OVIld like'WgD10nremrd' t hat -in'n'o- way -Mill -suppurtwnythange=in"vzoning. 'EMVS-trefet-is -ourTnain avenue to the north. Allowing a drive thru to enter and or exit onto the neighborhood street would impair homeowners leaving from their private driveways. Our neighborhood is unique and what bothers homes to the north also bothers the rest of us to the south. I am very disappointed that P &Z department recommended approval of the zoning change. Marsha Keffer 815 Ector St 940 - 387 -9068 W aft, Julie A. From: Robinson, Heidi V <hrobinson @dentonisd.org> Sent: Monday, January 11, 2016 7:25 AM To: Wyatt, Julie A. Subject: Ector neighborhood I strongly disapprove of the Zoning change to allow Burger King and Popeye's to come into our quiet neighborhood. There are certainly enough fast food restaurants of both kind close by —so what is the actual need. °Hefdi Robinson ESL Teacher Hodge Elementary hrobinson @dentonisd.ora 940 - 369 -2837 W !S, Julie A. From: Katy Dawson <cathdawson @verizon.net> Sent: Monday, January 11, 2016 10:54 AM To: Wyatt, Julie A. Subject: zoning on corner of Ector and University Dr. I am hereby contacting you to inform you that I am NOT in favor of rezoning this property. It would ruin our quiet neighborhood of single family homes. The worst aspect of this zoning is allowing access to the property from Ector. This project would absolutely trash our neighborhood. Please mark me as AGAINST rezoning. 'Cwtherine'1VI."Dawson 1015 Ector St. Denton, TX 76201 This email has been checked for viruses by Avast antivirus software. www.avast.com Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: julie.wyatt@cityofdenton.com Fax: (940)349-7707 Project No: Z15-0027 Please circle one: In favor of request Neutral to request Comments: V— T- S J ignature: _ Q it Opposed to request Email Address:, '21� Physical Address of Property within 200 feet: For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on November 13, 2015. lut \ ,+ 'd I ) ) I, ) C .11 y"Ci'Iyof er twl�c( r jl�j Y-C,( qr) J I/City- 11CIVIS-111 I 11LI teS- Vid COS City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76 01/940.349.8541 www.cityofdeiitoii.com Department of Development Services Attn: Julie Wyatt, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: bail® julie.wyatt@cityofdenton.com ax® (940)349-7707 In favor of request Comments: Project No: Z15-0027 Please circle one: For specific information regarding the request, please refer to the City's website (see link below) for staffs analysis. The staff analysis will be posted on November 13, 2015. 9l-.I..11),.//Www,cltyol,(,icilloll.col,ii/ i� vei-i'iiiic�iit/city-council/city-council�iL.,�j,luI4ts-i,ii..i.i,iutes-.v.-I..(.I-cos City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com W aft, Julie A. From: jerry.clark48 <jerry.clark48 @verizon.net> Sent: Thursday, January 14, 2016 7:31 PM To: Wyatt, Julie A. Subject: RE- Zoning FOR Us 380 and Ector Rhonda and I oppose the rezoning. We have those types of fast food in this area already. Stripping a major road with fast food places reduces it's capacity vs blended land uses that support each other Please protect our wonderful neighborhood and thanks to our new leaders who are so eloquent and knowlegeable of our neighborhood. 'We are different and deserve to be preserved and supported vs overwhelmed with high density. We also need more owner occupied homes to keep our focus and strength against constant money seeking rezoning Sent from my Verizon Wireless 4G LTE Tablet W aft, Julie A. From: Alex Alexander <alexanderai @verizon.net> Sent: Wednesday, January 13, 2016 6:29 PM To: Mauladad, Munal Cc: Wyatt, Julie A. Subject: Z15 -0027 I live at 1220 Ector St with my wife and son. We are in the 500 foot radius of the proposed change. We already have huge issue with fast food trash and traffic, and do not want more of both, which would absolutely increase significantly if -yDu approve the proposed change. These businesses should - and can - find ,other locations that are appropriately zoned. Please demonstrate some support for preserving the character of unique Denton neighborhoods and deny the request. After the DATCU and Buckee's debacle, it is still not too late to show some support for residents. Otherwise, it is looking like the Council is overwhelmingly biased toward businesses at the expense of quality of life of the city's residents. Thank you, Alex Alexander Sent from my iPhone W aft, Julie A. From: Jake Jacobson <jake.cindy @verizon.net> Sent: Wednesday, January 13, 2016 5:09 PM To: Wyatt, Julie A. Subject: Planning and Zoning Case # ADP15 -0010 Ms. Wyatt: With regard to the proposed Alternative Development Plan for drive through restaurants at the SW corner of University and Ector: This is not an appropriate use of this property. It's not the correct zoning for fastfood and for good reason. We need a buffer between that kind of commercial and residential. In fact it appears their proposed curb cut on Ector would be across from a residence exposing that resident to 24/7 drive - through traffic. That's not a good plan. We have lived at 1122 Bellemead Dr since 1989, which is about 1400 feet from the target property. Thanks for your work on this. Steven & Cindy Jacobson 1 Mike Bell, Senior Planner, presented the backup materials for this request. There were no questions 2 or discussions on this item. There was no one to speak on this item. Vice -Chair Briggle closed the 3 Public Hearing. 4 5 Commissioner Frank Dudowicz motioned, Commissioner Larry Beck seconded to approve this 6 request. Motion approved (5 -0). Commissioner Devin Taylor "aye ", Vice -Chair Amber Briggle 7 "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", and Commissioner s Andrew Rozell "aye ". 9 D. Hold —a-p bl g hear I and �_recornme d t on to C;'ogneil �� ��c��ng __ _ _ _ __ _ _ _ _ _ Rezonin p IZe vest from Nei phborhood IZesidential Mixed l-7se NI MIJ I to Commumity Mixed t. -Ise General (C'1�1 (��._Iij�;_sab���t_p1c2p t� s_ pp1c>�.m:t��y_2:� L12�s"�_ rL(�i fly located at the southwest corner of West t.-Jni ei SHN Drive and lsctor Street. Z15 -0027 Bur per 10 11 This item was heard before Consent Agenda Item 3A and prior to the Items for Individual 12 Considerations. 13 14 Vice -Chair Briggle opened the Public Hearing. 15 16 Julie Wyatt, Associate Planner, provided the backup materials for Item for Individual 17 Consideration 4C and Public Hearing Item 5D. Wyatt provided the location map and zoning map. 18 The subject site is currently zoned Neighborhood Residential Mixed Use (NRMU), the proposed 19 zoning is Community Mixed Use General (CM -G). NRMU permits restaurants, but with a 20 limitation that no drive - through service is permitted. The future land use designation for the site is 21 commercial. The Commercial uses permitted in CM -G District are consistent with the existing 22 development pattern and character along West University Drive. 23 24 Wyatt stated the applicant is proposing two six -foot monument signs along West University Drive, 25 which is less than permitted for signs along primary arterials. The current requirements permit 20- 26 foot pole signs. There would be no ground signs proposed along Ector Street. There would be a 27 six -foot masonry screening wall along the south property line to screen the development from the 28 adjacent residential development. 29 30 The subject site would also contain bicycle parking at both restaurants, along with trash cans 31 located at the exit of the drive - through lines. There was a photometric study completed which 32 indicated the proposal exceeds the permitted .5 foot - candle at the property line. The applicant is 33 also proposing crosswalks from the sidewalk along West University Drive to the front of the 34 buildings to provide safe pedestrian access. There is a proposed second access off of West 35 University Drive. 36 37 Wyatt provided the landscape proposals along with the proposed elevations for both restaurants. 38 Staff sent out 12 public notices to property owners within 200 feet of the subject site, and 43 39 courtesy notices to property owners within 500 feet of the subject site. At this time staff has 40 received two (2) returned responses in opposition, which makes up 24 %, and three (3) returned 41 responses in favor of the request. A supermajority vote would be required by City Council. Staff 7 1 recommends approval of Z15 -0027. Staff recommends approval of ADP15 -0010 based on the 2 following condition: ADP15 -0010 is valid only if Z15 -0027 is approved by City Council. 3 4 Vice -Chair Briggle questioned the permitted uses with NRMU. Wyatt stated restaurants are 5 permitted uses with that zoning district with size limits. She stated retail sales and services would 6 also be allowed. 7 8 Commissioner Dudowicz questioned if the proposed size of the buildings meets the Denton 9 Development Code requirements. Wyatt confirmed. Commissioner Dudowicz questioned if the 10 primary concern is the drive -thru. Wyatt confirmed. 11 12 Commissioner Taylor questioned if NRMU would allow a drive -thru with a Specific Use Permit. 13 Wyatt stated for a bank use, but not a restaurant. Commissioner Taylor stated there are more 14 intense uses that would be allowed to develop on this site, compared to the proposed use. Wyatt 15 stated the applicant is present. 16 17 Armando Palacios, Director of Development for Sun Holdings, 3318 Forest Lane, Dallas, Texas. 18 Palacios stated they understand the concerns of the City and the neighbors. He stated he plans to 19 develop a nice building and plans to go above and beyond the required landscape and screening 20 requirements. The process for the traffic study analysis has been started. 21 22 Mickey Thomas, Civil Engineer, 3973 W Vickery, Dallas, Texas. Thomas stated they have worked 23 with staff on this project, and have heard the concerns from the citizens. He stated they have held 24 two neighborhood meetings to discuss comments and concerns. 25 26 Donald Bounds, Landscape Architect, 2001 N. Lamar, Suite 290, Dallas, Texas. Bounds stated 27 they have worked with the staff in regards to the landscape, lighting, and trash and debris concerns. 28 The intent is to preserve as many of the trees along the west side of the property, and add Evergreen 29 Holly trees as well. Commissioner Beck questioned the proposed height of those trees. Bounds 30 stated approximately six foot. 31 32 Larry, Traffic Engineer, Binkley & Barfield, 1801 Gateway, Richardson, Texas. Larry stated on 33 November 19, 2015 a traffic study was completed. He stated they reviewed the current traffic study 34 along with a proposal for traffic within the next five years. He stated they would like to have a 35 driveway onto University Drive. Vice -Chair Briggle questioned if the traffic study included Ector 36 Street. Larry confirmed. Vice -Chair Briggle questioned if it included Emery Street as well. Larry 37 stated it did not include Emery Street. He stated the proposed development would add 38 approximately 10 -13 vehicles onto Ector Street per day. 39 40 Commissioner Taylor questioned if the model included a breakdown of traffic entering and exiting 41 the site. Larry confirmed, he stated there would be approximately six vehicles entering in the 42 morning peak hours and six in the afternoon peak hours. 43 44 Commissioner Rozell stated a lot of people cut through Emery Street with the current construction 45 on University Drive. He stated he feels that the traffic study should have included Emery Street. E3 1 Commissioner Rozell stated he feels that the traffic would increase more than 10 -13 vehicles on 2 Ector Street. 3 4 The following individuals spoke during the public hearing in opposition: 5 Michael Hennen, 724 Thomas Street, Denton, Texas. Opposed to this request. 6 Jessie Davis, 1228 Ector Street, Denton, Texas. Discussed having a signed petition. 7 8 Commissioner Rozell stated this Commission has not received the petition that has been 9 mentioned. He questioned if the petition is specifically in regards to the ADP or the zoning. Davis 10 stated the zoning. Commissioner Beck stated there are a lot of concerns from the citizens in regards 11 to the drive -thru, he questioned if Davis has issues with the restaurant in general. Davis stated that 12 he personally does not. 13 14 Bill DeBerry Sr., 2823 W. University Drive, Denton, Texas. Opposed to this request. There 15 are a lot of traffic concerns in the area. DeBerry stated he doesn't want to deal with the 16 odor from the proposed business, and has concerns with the potential for the trees to be 17 removed on the west side of the subject site. 18 19 Commissioner Beck stated the trees on the site are not proposed to be removed. He questioned 20 DeBerry if he feels that the traffic concerns are ongoing or just due to the recent construction. 21 DeBerry stated he feels that the traffic concerns are ongoing. 22 23 Lindsay Keffer, 815 Ector Street, Denton, Texas. Opposed to this request. 24 Brigid Corbett, 1220 Ector Street, Denton, Texas. Opposed to this request. 25 Charlotte Davis, 728 Ector Street, Denton, Texas. Opposed to this request. 26 Gloria Howell, 1216 Ector Street, Denton, Texas. Opposed to this request. 27 Alex Alexander, 1220 Ector Street, Denton, Texas. Opposed to this request. 28 Cathy McMullen, 805 Ector Street, Denton, Texas. Opposed to this request. 29 Calvin Ballenger, 1228 Hillcrest, Denton, Texas. Opposed to this request. 30 31 The following individuals do not wish to speak, and are opposed to this request: 32 Mary Marino, 723 Ector Street, Denton, Texas. Opposed to this request. 33 Niki Barnes, 711 Ector Street, Denton, Texas. Opposed to this request. 34 Paul Barnes, 711 Ector Street, Denton, Texas. Opposed to this request. 35 Karen McCormick, 1111 Ector Street, Denton, Texas. Opposed to this request. 36 Mary McCormick, 1111 Ector Street, Denton, Texas. Opposed to this request. 37 Marilyn Manning, 814 Ector Street, Denton, Texas. Opposed to this request. 38 Scott Sellers, 1027 Ector Street, Denton, Texas. Opposed to this request. 39 Marsha Keffer, 815 Ector Street, Denton, Texas. Opposed to this request. 40 Catherine Dawson, 1015 Ector Street, Denton, Texas. Opposed to this request. 41 Heidi Robinson, 716 Ector Street, Denton, Texas. Opposed to this request. 42 Lisa Van Horn, 1027 Ector Street, Denton, Texas. Opposed to this request. 43 44 There was no one else to speak on this request. Vice -Chair Briggle closed the Public Hearing. 45 Jennifer DeCurtis, Deputy City Attorney, stated at least four votes would be needed in order for 46 this request to pass. P] 1 2 Commissioner Beck thanked the citizens for speaking and staff for their work. He stated trash 3 concerns are going to happen on any site, they might increase based on the proposed use and they 4 might decrease. 5 6 Commissioner Rozell thanked the citizens for voicing their concerns. He stated the primary 7 concerns are the traffic, growth in the area, trash and other pollutions. He stated the zoning aligns 8 with the future land use. 9 10 Commissioner Taylor stated the zoning aspect of the request is generally more critical of the two. 11 It sets the future uses for the site. He stated some of the concerns discussed could potentially be 12 mitigated based on an overlay. 13 14 Commissioner Dudowicz stated the primary concern is the drive -thru, however, the restaurants 15 could go onto the site based on size requirements. 16 17 Vice -Chair Briggle questioned if there is a Small Area Plan (SAP) for this neighborhood. Wyatt 18 stated at one point there was preliminary steps for a SAP. She stated she doesn't believe that it 19 progressed. Vice -Chair Briggle questioned what the neighborhood would need to do to get the 20 steps going in order to help protect their neighborhood. Munal Mauladad, Deputy Director of 21 Development Services, stated they would need to get into contact with Ron Menguita, Long Range 22 Planning Administrator. 23 24 Vice -Chair Briggle questioned this Commission's role in regards to odors. Wyatt stated the ADP 25 is being used as a mechanism to address some of the concerns that would impact the neighborhood. 26 DeCurtis stated odors wouldn't be covered by an ADP. They would be considered a civil matter 27 unless they are considered noxious gases or fumes. 28 29 Commissioner Rozell questioned if the site access could be limited to University Drive and no 30 longer Ector Street. DeCurtis stated that could not be addressed within the zoning request. 31 32 Mauladad stated the Denton Development Code discourages access on primary roadways such as 33 University Drive when there is a secondary arterial street such as Ector Street. 34 35 Commissioner Rozell questioned if a SAP protects the neighborhood. Menguita stated a study 36 would be done to discuss goals, objectives and guidelines for protecting the neighborhood. 37 38 Commissioner Devin Taylor motioned, Commissioner Larry Beck seconded to deny this request. 39 Motion carried (5 -0). Commissioner Devin Taylor "aye ", Vice -Chair Amber Briggle "aye ", 40 Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", and Commissioner 41 Andrew Rozell "aye ". 42 10 1 4. ITEMS FOR INDIVIDIJAL CONSIDERATION C. Consider a roval of an Alternative Develo ment Plan for the construction of two Restaurants with Dr v_e- Thrc>a�gb Facilities, T 2.1 acres Jniversit Drive and Ector St, ��;t- (A 1 ? 11 -()() alr_Nt Ki n Ps2P_g v � 1's.,1L,1i� -Y � tt). 4 This item was heard following Public Hearing Item 5D. 6 Jennifer DeCurtis, Deputy City Attorney, suggested postponing this item until City Council has 7 heard the zoning request. Commissioner Taylor suggested that the citizens attend the City Council 8 meeting during this hearing to provide their comments. 9 10 Commissioner Andrew Rozell motioned, Commissioner Frank Dudowicz seconded to continue 11 this item until after City Council hears the request. Motion carried (5 -0). Commissioner Devin 12 Taylor "aye ", Vice -Chair Amber Briggle "aye ", Commissioner Frank Dudowicz "aye ", 13 Commissioner Larry Beck "aye ", and Commissioner Andrew Rozell "aye ". 14 15 Vice -Chair Briggle called a recess from 8:43 p.m. to 8:56 p.m. 16 17 PIJBIAC" HEARINGS 18 19 This item was heard prior to Consent Agenda Item 3A and Item for Individual Consideration 4A. 20 21 Vice -Chair Briggle opened the Public Hearing. Jennifer DeCurtis, Deputy City Attorney, stated 22 this is an amendment not superseding the overlay. 23 24 Sophie Huemer, Associate Planner, provided the backup materials for this request. Staff sent out 25 118 public notices to property owners within 200 feet of the subject site, and 237 courtesy notices 26 to property owners within 500 feet of the subject site. At this time staff has not received any 27 returned responses. Staff recommends approval of this request. 28 29 Commissioner Taylor questioned if this amendment would change the permitted uses within the 30 Rayzor Ranch Town Center. Huemer stated it would not interfere with those permitted uses. 31 Commissioner Taylor questioned if this amendment would interfere with landscape requirements. 32 Huemer stated it would not. 33 34 There were no further questions. The applicant was present for questions but didn't wish to speak. 11 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A NEIGHBORHOOD RESIDENTIAL MIXED USE ZONING DISTRICT AND USE CLASSIFICATION (NRMU) TO A COMMUNITY MIXED USE GENERAL ZONING DISTRICT AND USE CLASSIFICATION (CM -G) ON APPROXIMATELY 2.1 ACRES OF LAND GENERALLY LOCATED ON THE SOUTHWEST CORNER OF WEST UNIVERSITY DRIVE AND ECTOR STREET 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 -0027) WHEREAS, Jose F. Rojas, Jr. has applied for a zoning change from a NRMU zoning district and use classification to a CM -G zoning district and use classification on approximately 2.1 acres of land located at Lots 1 and 2, Block 1, Roberts Addition in the City of Denton, Denton County, Texas and depicted on the attached Exhibit A (the "Property "); and WHEREAS, on January 13, 2016, 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 WHEREAS, several citizens attended the public hearing on this matter to voice opposition to a drive - through restaurant at the Property, and staff also received written protests from at least 20% of the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area; WHEREAS, as a result of the public hearing, the Planning and Zoning Commission has recommended denial (5 -0) of the change in zoning district and use classification; and WHEREAS, on February 2, 2016, the City Council likewise conducted a public hearing as required by law, and after an affirmative vote of at least three - fourths of all members of the governing body, 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; WHEREAS, the City Council of the City of Denton, in considering the application for a change in the zoning classification of the Property, has 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 CM -G. 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 , 2016. 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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. NR -2 SITE Parcels Z15 -0027 Site Location / Zoning Map CM -G NR -1 NR-2 NR -1 NR-3 N R M U NRMU -12 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 sui 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 for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. no CORUELL DENTON Planning Depvuo°in'te n (AS Date: 10/23/2015 >urposes but rather for reference purposes. These maps are the property of the City of and accurate information possible. No warranties, expressed or implied, are provided Z15 -0027 Site Location / Future Land Use Map Ell Low 0 Residential 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. 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 Community Mixed Use General (CM -G) Permitted Uses RESIDENTIAL: P Agriculture, Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled, L(4) & L(6) Multifamily L(7) Livestock COMMERCIAL: P Hotels, Motels, Bed and Breakfast, 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, Commercial Parking Lots, Administrative or Research Facilities, Broadcasting of Production Studio L(38) Temporary Uses SUP Movie Theaters, Major Event Entertainment INDUSTRIAL: P Printing /Publishing, Bakeries, Veterinary Clinics L(27), SUP 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, Kindergarten, Elementary School, Middle School, High School, Colleges, Conference /Convention Centers, Medical Centers, Mortuaries SUP Basic Utilities, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) — Multifamily is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of Master Planned Community, Existing; or 4. If the development received approval allowing multifamily use within one 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 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(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. Denton Development Code General Regulations Dimensional NRMU, DDC Section 35.5.2.3 CM -G, DDC Section 35.5.4.3 Requirements The following requirements apply to subdivisions two acres or less: Minimum Lot Area 2,500 square feet 2,500 square feet Minimum Lot Width 20 Feet 50 feet Minimum Lot Depth 50 feet 50 feet The following requirements apply to subdivisions greater than two acres: Maximum Density 30 units /acre Minimum Side Yard 20 feet for Non - Attached Buildings Minimum Front Yard None None Setback Minimum Side Yard 6 feet None Setback Minimum Side Yard None None Adjacent to a Street Minimum Rear Yard None Minimum Yard 20 feet plus 1 foot for each foot 20 feet When Abutting a of building height above 20 feet Single- family Use or District Maximum Floor Area 1.5 Ratio Minimum Residential 500 square feet Unit Size Maximum Lot 80% 80% Coverage Minimum Landscape 20% 20% Area Maximum Building 65 feet 75 feet Height mzm mm 154.25'- N 01' 03'39" E 150.59'- N 00* 13'33" E 25 . �, - -_o -__ F i m E� 0 'W6 z P ONESTORY FRAMED BUILDING 2,740 SQ.FT. -H 304.80- N 00* 53' 44" E IA— x 13 0 68 6 q A ONE STORY FRAMED BUILDING 2,460 SQ. 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NH92 <. 2a_-69 69 poprcrc LU Lu _j Ill 8. 8H., . < Ho , LU LU 7 cn wgg 3� s< on— fi-8fl T o-. <o' o' 'N o< 6 g 0 o- ox 5 o "A _j ol E 0 Lu lo I- of p E 0 I.- cn W o E2, o-, oo> i ox x - j -T x� ox- x's R o' ox pw� <x- _j . .. .. . I o. 8. Ho Lu 0 >; W z < lo 99 V o LU Lu 5— o' o go, x' Un x' 25 9 IN x. imp SONIMtMG z H. oo 8. 2 5. x `W< . o. 8 SINVA 7i City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: Z15- 0032a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: February 2, 2016 SUBJECT Hold a public hearing and consider a request for rezoning to a Neighborhood Residential 4 (NR -4) District for three tracts of land generally located 1,500 feet south of the intersection of Kings Row and North Loop 288, in the City of Denton, Denton County, Texas. Tract 1 is approximately 1.3 acres in size and is currently zoned a Community Mixed Use General (CM -G) District. Tract 2 is approximately 1.08 acres in size and is currently zoned a Neighborhood Residential Mixed Use 12 (NRMU -12) District. Tract 3 is approximately 0.51 acres in size and is currently zoned a Neighborhood Residential 3 (NR -3) District. The Planning and Zoning Commission recommends approval of this request (5 -0). BACKGROUND In 2002, the applicant rezoned approximately 180 acres around the future intersection of East Windsor Drive and North Loop 288 to facilitate a development to be known as Windsor Oaks. As part of this rezoning, approximately 35 acres on the west side of Windsor Oaks received an NR -4 zoning designation in anticipation of single- family development. No development activity occurred in this area until September 2014, when the applicant submitted a Preliminary Plat of Phase 1 (PP 14 -0024) to develop 75 single- family homes. During review of the plat, however, it was determined that the boundary of the proposed subdivision did not align precisely with the zoning districts established in 2002. Specifically, approximately 2.38 acres along the eastern perimeter of the development were zoned a combination of CM -G (Tract 1) and NRMU -12 (Tract 2), which do not permit detached single - family dwellings. As a result, a rezoning is required to adjust the zoning boundaries before the plat can be considered for approval. The applicant has therefore submitted a request to rezone these areas to NR -4 for consistency with the remainder of Phase 1. Phase 1 also includes approximately ten acres of NR -3 zoning mostly encumbered by the Cooper Creek floodplain. During preparation of the plat for Phase 1, it was determined that approximately 0.51 acres of this NR -3 property was located outside of the floodplain and is developable land. Although the NR -3 District permits detached single- family dwellings and Tract 3 would not need to be rezoned to permit the proposed development, approval of the plat under the current zoning configuration would result in some lots being split between NR -3 and NR -4 Districts. To avoid potential complications of split zoning, all three tracts have been consolidated under the NR -4 District. To comply with the public hearing notice requirements, three notices were sent to property owners within 200 feet of the subject property, 22 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 City of Denton Page 1 of 3 Printed on 1/28/2016 File #: Z15- 0032a, Version: 1 has received no responses to the public hearing notices. 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 (5 -0). The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On January 13, 2015, the Planning and Zoning Commission recommended approval of the rezoning request (5- 0). STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action - oriented road map that will help the City achieve its vision. The foundation for the plan is the five long -term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family - Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.4 Encourage deelopment, redevelopment, recruitment, and retention EXHIBITS 1. Staff Analysis 2. Site Location 3. Zoning Map 4. Future Land Use Map 5. Zoning Exhibit 6. Applicant Narrative 7. NR -4 Permitted Uses 8. Notification Map 9. Planning and Zoning Commission Meeting Minutes 10. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services City of Denton Page 2 of 3 Printed on 1/28/2016 File #: Z15- 0032a, Version: 1 Prepared by: Mike Bell Senior Planner City of Denton Page 3 of 3 Printed on 1/28/2016 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 -0032, Version: 1 Planning Report Z15- 0032/Windsor Oaks Phase 1 City Council District 2 Planning & Zoning Commission January 13, 2016 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a request for rezoning to a Neighborhood Residential 4 (NR -4) District for three tracts of land generally located 1,500 feet south of the intersection of Kings Row and North Loop 288, in the City of Denton, Denton County, Texas. Tract 1 is approximately 1.3 acres in size and is currently zoned a Community Mixed Use General (CM -G) District. Tract 2 is approximately 1.08 acres in size and is currently zoned a Neighborhood Residential Mixed Use 12 (NRMU -12) District. Tract 3 is approximately 0.51 acres in size and is currently zoned a Neighborhood Residential 3 (NR -3) District. (Z15 -0032, Windsor Oaks Phase 1, Mike Bell) OWNER: Windsor Oaks Residential Trust 444 APPLICANT: Randall Smith BACKGROUND: In 2002, the applicant rezoned approximately 180 acres around the future intersection of East Windsor Drive and North Loop 288 to facilitate a development to be known as Windsor Oaks. As part of this rezoning, approximately 35 acres on the west side of Windsor Oaks received an NR -4 zoning designation in anticipation of single- family development. No development activity occurred in this area until September 2014, when the applicant submitted a Preliminary Plat of Phase 1 (PP 14 -0024) to develop 75 single- family homes. During review of the plat, however, it was determined that the boundary of the proposed subdivision did not align precisely with the zoning districts established in 2002. Specifically, approximately 2.38 acres along the eastern perimeter of the development were zoned a combination of CM -G (Tract 1) and NRMU -12 (Tract 2), which do not permit detached single - family dwellings. As a result, a rezoning is required to adjust the zoning boundaries before the plat can be considered for approval. The applicant has therefore submitted a request to rezone these areas to NR -4 for consistency with the remainder of Phase 1. Phase 1 also includes approximately ten acres of NR -3 zoning mostly encumbered by the Cooper Creek floodplain. During preparation of the plat for Phase 1, it was determined that approximately 0.51 acres of this NR -3 property was located outside of the floodplain and is developable land. Although the NR -3 District permits detached single- family dwellings and Tract 3 would not need to be rezoned to permit the proposed development, approval of the plat under the current zoning configuration would result in some lots being split between NR -3 and NR -4 Districts. To avoid potential complications of split zoning, all three tracts have been consolidated under the NR -4 District. City of Denton Page 1 of 4 Printed on 1/8/2016 File #: Z15 -0032, Version: 1 SITE DATA: All three tracts, in addition to the remaining 33.07 acres of Phase 1 are undeveloped. The extension of East Windsor Drive will serve as the northern boundary of Phase 1 and the Cooper Creek floodplain will separate Phase 1 from existing single - family to the south and west. USE OF PROPERTY UNDER CURRENT ZONING: Tract 1 - The purpose of the CM -G District is to support the "Community Mixed Use" future land use in Denton Plan 2030, which encourages mixed use centers serving the large areas of the city. CM -G is predominantly a commercial and retail district that also permits multifamily residential on the 2nd floor above businesses. The only industrial uses permitted in this district include Printing /Publishing, Bakeries, and Veterinary Clinics. Tract 2 - The purpose of the NRMU -12 District is to support the "Neighborhood Mixed Use" future land use designation by permitting light commercial, office, institutional uses, and residential development up to 12 units per acre. Tract 3 - The purpose of the NR -3 District is to support the "Low Residential" future land use designation by permitting single- family homes with a maximum density of 3.5 dwelling units per acre. Townhomes, 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. SURROUNDING ZONING /LAND USES: North: The undeveloped areas to the north of Phase 1 are zoned NR -4 and CM -G. The NR -4 area is a future phase of the Windsor Oaks development planned for single - family. The CM -G area is another future phase of Windsor Oaks planned for commercial and retail uses. East: The undeveloped areas to the east of Phase 1 are zoned CM -G and NRMU -12. The CM -G area is a future phase of Windsor Oaks planned for commercial and retail uses. The NRMU -12 area is also a future phase of Windsor Oaks planned for multi - family dwellings or townhomes. South and West: The area to the south and west of Phase 1 is existing single - family development zoned NR -3 and known as Northwood Estates. The Cooper Creek floodplain separates Phase 1 of Windsor Oaks from Northwood Estates. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING /LAND USES: The request to rezone to an NR -4 District is compatible with the remaining 33.07 acres of NR -4 currently within Phase 1, the approximately 12 acres of NR -4 to the north, and the existing single- family neighborhoods to the south and west. COMPREHENSIVE PLAN: Per the Future Land Use Map in Denton Plan 2030, the subject property is designated as "Moderate Residential." This designation is primarily intended to promote single - family housing on small lots, typical of Denton's more compact, established single- family neighborhoods. The density of Moderate Residential should range between four to twelve units per acre. Low -rise multifamily dwellings and townhomes may also be located in these areas so long as they maintain a scale, style, and building orientation complementary of the prevailing character of the area. This designation typically applies to areas within the central areas of Denton as a transition between established single- family neighborhoods and mixed -use or commercial areas that can City of Denton Page 2 of 4 Printed on 1/8/2016 File #: Z15 -0032, Version: 1 accommodate greater density. Development Criteria of the Moderate Density future land use designation include the following: a. Development may include single- family development on small lots, duplexes, townhomes, and low - density multifamily dwellings. b. Development should be within and adjacent to Denton's existing neighborhoods, consistent with the Preferred Growth Concept. c. Residential development with a variety of housing styles, types, and prices that is compatible with adjacent development is encouraged. d. Infill development should respond to existing development with compatible patterns and design standards. e. New residential development should be organized to promote walkability, including sidewalks, and ideally should locate all residences within a five to ten minute walk from neighborhood- serving retail, parks, and schools. f. Urban agriculture is encouraged. g. Places of worship, parks, and open space are allowed by right. h. The character of this area should be maintained by ensuring new development is sensitive to the surrounding built and natural context in scale and form. CONSIDERATIONS: 1. The proposed rezoning is a slight adjustment to the zoning boundaries of the Windsor Oaks development so that all of Phase 1 is within an NR -4 District. This change does not reflect a major change from the original development plans of Windsor Oaks originally approved in 2002. 2. The secondary purpose of this request is to rezone Tract 3, previously believed to be undevelopable land within the floodplain, from an NR -3 District to an NR -4 District. This rezoning is consistent with the NR -4 District on remainder of Phase 1 and avoids the creation of lots with split zoning. 3. The request to rezone to an NR -4 District is compatible with the remaining 33.07 acres of NR -4 currently within Phase 1, the approximately 12 acres of NR -4 to the north, and the existing single- family neighborhoods to the south and west. The CM -G and NRMU -12 Districts are also part of Windsor Oaks and have been in place since 2002. 4. If approved, the maximum number of units permitted within all of Phase 1 would increase from 175 units to 186 units. It should be noted, however, that an increase in lot yield is not the purpose of the rezoning request. The applicant has submitted a Preliminary and Final Plat that proposes a total of 75 single - family lots. The additional NR -4 property is not necessary to facilitate the number of lots proposed. 5. Per Subchapter 35.3.4 of the Denton Development Code (DDC), a rezoning may be approved when the following standards are met: a. The proposed rezoning conforms to the future land use element of Denton Plan 2030. A rezoning to an NR -4 District for the three tracts would be consistent with the "Moderate Residential "future land use designation of the property. b. The proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. All items are anticipated to be provided as needed to adequately serve the development. City of Denton Page 3 of 4 Printed on 1/8/2016 File #: Z15 -0032, Version: 1 STAFF RECOMMENDATION: Staff recommends approval of the request as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030. 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, three notices were sent to property owners within 200 feet of the subject property, 22 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: Site Location • Zoning Map Future Land Use Map • Zoning Exhibit • Applicant Narrative • NR -4 Permitted Uses • Notification Map November 30, 2015 December 3, 2015 December 18, 2015 Declined 12 0 12 Respectfully submitted: Beverly Zendt, AICP Development Review Committee Administrator Prepared by: Michael J. Bell Senior Planner City of Denton Page 4 of 4 Printed on 1/8/2016 SALega1 \0ur Documents \Ordinances \16\7,15 -0032 Ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING A REZONING TO A NEIGHBORHOOD RESIDENTIAL 4 (NR -4) ZONING DISTRICT AND USE CLASSIFICATION FOR THREE TRACTS OF LAND GENERALLY LOCATED 1,500 FEET SOUTH OF THE INTERSECTION OF KINGS ROW AND NORTH LOOP 288, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS. TRACT 1 IS APPROXIMATELY 1.3 ACRES IN SIZE AND IS CURRENTLY ZONED A COMMUNITY MIXED USE GENERAL (CM -G) DISTRICT. TRACT 2 IS APPROXIMATELY 1.08 ACRES IN SIZE AND IS CURRENTLY ZONED A NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU -12) DISTRICT. TRACT 3 IS APPROXIMATELY 0.51 ACRES IN SIZE AND IS CURRENTLY ZONED A NEIGHBORHOOD RESIDENTIAL 3 (NR -3) DISTRICT; 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 SAVINGS CLAUSE, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0032) WHEREAS, Randall Smith, on behalf of the property owner, Windsor Oaks Residential Trust #44, has applied for a zoning change for three tracts of land totaling approximately 2.89 acres legally described in Exhibit "A" and illustrated in Exhibit "B ", attached hereto and incorporated herein by reference (hereinafter, the "Properties ") from CM -G, NRMU -12, and NR- 3 zoning districts and use classifications to an NR -4 zoning district and use classification; and WHEREAS, on January 13, 2016, 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 (5 -0) of the change in zoning district and use classification; and WHEREAS, on February 2, 2016, 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 Properties is hereby changed from CM -G, NRMU -12, and NR -3 to NR -4. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning districts and use classifications. 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 , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY :• CHRIS WATTS, MAYOR Exhibit A Legal Description TRACT 1 FIELD NOTES to all that certain tract of land situated in the C. Carter Survey, Abstract Number 275 and the D. Culp Survey, Abstract Number 287, in the City of Denton, Denton County, Texas, being a part of a called 111.64 acre tract of land described in a deed to Edward F. Wolski, as recorded in County Clerk File Number 2005 - 16351, Real Property Records, Denton County, Texas, the subject tract being more particularly described as follows; COMMENCING at a capped iron rod found stamped "Carter & Burgess" for the Northwest corner of said 111.64 acre tract; THENCE South 88 degrees 33 minutes 36 seconds East with the North line thereof, a distance of 725.63 feet to a point for the Northeast corner of said 111.64 acre tract in the West line of Loop 288 and being in a curve to the right having a radius of 3709.72 feet and a chord bearing and distance of South 40 degrees 50 minutes 37 seconds East, 503.03 feet; THENCE Southeasterly with the arc of said curve, the East line of said 111.64 acre tract and the West line of said Loop 288, an arc distance of 503.41 feet to a concrete monument found on said line; THENCE South 31 degrees 28 minutes 40 seconds East with the East line of said 111.64 acre tract and the West line of said Loot 288, a distance of 581.22 feet to a 5/8" iron rod found on said line; THENCE North 89 degrees 00 minutes 19 seconds West, departing the East line of said 111.64 acre tract and the West line of said Loop 288, a distance 660.29 feet to the most Easterly Northeast corner and POINT OF BEGINNING of the herein described tract; THENCE South 08 degrees 24 minutes 39 seconds East, a distance of 462.76 feet to a point at the beginning of a curve to the left having a radius of 436.50 feet and a chord bearing and distance of South 28 degrees 17 minutes 57 seconds East, 296.98 feet; THENCE Southeasterly with the arc of said curve, an arc distance of 303.03 feet to a point for the most Southerly corner of the herein described tract, said point being at the beginning of a curve to the right having a radius of 500.00 feet and a chord bearing and distance of North 30 degrees 56 minutes 44 seconds West, 430.53 feet; THENCE Northwesterly with the arc of said curve, an arc distance of 445.08 feet to a point on the West line of the herein described tract at the beginning of a curve to the left having a radius of 621.51 feet and a chord bearing and distance of North 19 degrees 03 minutes 32 seconds West, 292.59 feet; THENCE Northwesterly with the arc of said curve, an arc distance of 295.36 feet to a point on the West line of the herein described tract; THENCE North 30 degrees 49 minutes 52 seconds West, a distance of 45.00 feet to a point for an inner ell corner on the West line of the herein described tract, said point being at the beginning of a curve to the right having a radius of 750.00 feet and a chord bearing and distance of South 63 degrees 03 minutes 54 seconds West, 101.92 feet; THENCE Southwesterly with the arc of said curve, an arc distance of 102.00 feet to a point for the most Westerly Southwest corner of the herein described tract; THENCE North 00 degrees 18 minutes 10 seconds West, a distance of 146.85 feet to a point for the Northwest corner of the herein described tract at the beginning of a curve to the left having a radius of 939.17 feet and a chord bearing and distance of North 79 degrees 30 minutes 50 seconds East, 113.88 feet; THENCE Northeasterly with the arc of said curve, an arc distance of 113.95 feet to a point for the most Northerly Northeast corner of the herein described tract; THENCE South 12 degrees 10 minutes 37 seconds East, a distance of 110.03 feet to a point for an inner ell corner of the East line of the herein described tract; THENCE North 76 degrees 35 minutes 21 seconds East, a distance of 90.44 feet to the POINT OF BEGINNING and enclosing 1.39 acres of land more or less. TRACT 2 FIELD NOTES to all that certain tract of land situated in the D. Culp Survey, Abstract Number 287, in the City of Denton, Denton County, Texas, being a part of a called 111.64 acre tract of land described in a deed to Edward F. Wolski, as recorded in County Clerk File Number 2005 - 16351, Real Property Records, Denton County, Texas, the subject tract being more particularly described as follows; COMMENCING at a capped iron rod found stamped "Carter & Burgess" for the Northwest corner of said 111.64 acre tract; THENCE South 88 degrees 33 minutes 36 seconds East with the North line thereof, a distance of 725.63 feet to a point for the Northeast corner of said 111.64 acre tract in the West line of Loop 288 and being in a curve to the right having a radius of 3709.72 feet and a chord bearing and distance of South 40 degrees 50 minutes 37 seconds East, 503.03 feet; THENCE Southeasterly with the arc of said curve, the East line of said 111.64 acre tract and the West line of said Loop 288, an arc distance of 503.41 feet to a concrete monument found on said line; THENCE South 31 degrees 28 minutes 40 seconds East with the East line of said 111.64 acre tract and the West line of said Loot 288, a distance of 581.22 feet to a 5/8" iron rod found at the beginning of a curve to the right having a radius of 3709.72 feet and a chord bearing and distance of South 17 degrees 54 minutes 19 seconds East, 1350.34 feet; THENCE Southeasterly with the arc of said curve, the West line of said Loop 288 and the East line of said 111.64 acre tract, an arc distance of 1357.91 feet to a point on said line; THENCE North 50 degrees 49 minutes 21 seconds West, departing the East line of said 111.64 acre tract and the West line of said Loop 288, a distance 723.00 feet to the Northeast corner and POINT OF BEGINNING of the herein described tract; THENCE South 09 degrees 52 minutes 10 seconds West, a distance of 675.09 feet to a point for the Southeast corner of the herein described tract; THENCE South 79 degrees 21 minutes 01 seconds West, a distance of 19.96 feet to a point for the Southwest corner of the herein described tract; THENCE North 01 degrees 30 minutes 05 seconds East, a distance of 690.31 feet to a point for the Northwest corner of the herein described tract at the beginning a curve to the left having a radius of 436.50 feet and a chord bearing and distance of South 78 degrees 19 minutes 04 seconds East, 27.62 feet; THENCE Southeasterly with the arc of said curve, an arc distance of 27.62 feet to a point on the North line of the herein described tract; THENCE South 80 degrees 07 minutes 50 seconds East, a distance of 91.56 feet to the POINT OF BEGINNING and enclosing 1.08 acres of land more or less. TRACT 3 FIELD NOTES to all that certain tract of land situated in the D. Culp Survey, Abstract Number 287, in the City of Denton, Denton County, Texas, being a part of a called 111.64 acre tract of land described in a deed to Edward F. Wolski, as recorded in County Clerk File Number 2005- 16351, Real Property Records, Denton County, Texas, the subject tract being more particularly described as follows; COMMENCING at a capped iron rod found stamped "Carter & Burgess" for the Northwest corner of said 111.64 acre tract; THENCE South 88 degrees 33 minutes 36 seconds East with the North line thereof, a distance of 725.63 feet to a point for the Northeast corner of said 111.64 acre tract in the West line of Loop 288 and being in a curve to the right having a radius of 3709.72 feet and a chord bearing and distance of South 40 degrees 50 minutes 37 seconds East, 503.03 feet; THENCE Southeasterly with the arc of said curve, the East line of said 111.64 acre tract and the West line of said Loop 288, an arc distance of 503.41 feet to a concrete monument found on said line; THENCE South 31 degrees 28 minutes 40 seconds East with the East line of said 111.64 acre tract and the West line of said Loot 288, a distance of 581.22 feet to a 5/8" iron rod found at the beginning of a curve to the right having a radius of 3709.72 feet and a chord bearing and distance of South 17 degrees 54 minutes 19 seconds East, 1350.34 feet; THENCE Southeasterly with the arc of said curve, the West line of said Loop 288 and the East line of said 111.64 acre tract, an arc distance of 1357.91 feet to a point on said line; THENCE South 85 degrees 45 minutes 19 seconds West, departing the East line of said 111.64 acre tract and the West line of said Loop 288, a distance 1129.85 feet to the Northwest corner and POINT OF BEGINNING of the herein described tract; THENCE South 61 degrees 13 minutes 09 seconds East, a distance of 435.79 feet to a point for the Northeast corner of the herein described tract; THENCE South 06 degrees 55 minutes 08 seconds East, a distance of 15.87 feet to a point for corner on the East line of the herein described tract; THENCE South 26 degrees 17 minutes 50 seconds West, a distance of 33.60 feet to a point for the most Easterly Southeast corner of the herein described tract; THENCE Northwesterly with the South line of the herein described tract, the following 14 courses and distances: 1) South 61 degrees 23 minutes 14 seconds West, a distance of 0.31 feet to a point; 2) South 80 degrees 48 minutes 13 seconds West, a distance of 17.15 feet to a point; 3) North 65 degrees 31 minutes 52 seconds West, a distance of 40.37 feet to a point; 4) North 48 degrees 28 minutes 03 seconds West, a distance of 21.74 feet to a point; 5) North 73 degrees 36 minutes 49 seconds West, a distance of 28.05 feet to a point; 6) North 49 degrees 57 minutes 44 seconds West, a distance of 29.39 feet to a point; 7) North 76 degrees 20 minutes 04 seconds West, a distance of 18.75 feet to a point at the beginning of a curve to the right having a radius of 60.00 feet and a chord bearing and distance of North 59 degrees 38 minutes 56 seconds West, 38.75 feet; 8) Northwesterly with the arc of said curve, an arc distance of 39.46 feet to a point; 9) North 57 degrees 13 minutes 44 seconds West, a distance of 58.56 feet to a point; 10)North 53 degrees 49 minutes 30 seconds West, a distance of 53.17 feet to a point; 11) North 54 degrees 08 minutes 25 seconds West, a distance of 31.87 feet to a point; 12) North 49 degrees 00 minutes 48 seconds West, a distance of 80.49 feet to a point; 13)North 34 degrees 52 minutes 27 seconds West, a distance of 28.46 feet to a point; 14)North 08 degrees 05 minutes 13 seconds West, a distance of 18.91 feet to the POINT OF BEGINNING and enclosing 0.51 acres of land more or less. Exhibit B Site Location Map C) -i A TRACT OF LAND DESCRIBED IN AT)FFD TO CORPORATIOP THE PRESIDING BISHOP OF I HE CHURCH OF JESUS CHRIST OF LATTER ER DAY SAINTS VOL. 26`36, PC, 751 RID C.T. JP6R] REMAINDER Or A TRIkC- OF LAND ')CSC' RIBCD IN A DELI; 10 EDWOLSKI C'-F,'i 2005-11635' R P R 0 C- i ti POBI[ RI f AINPL R OF 4� A I FACT OF' LAND 0 B FFD TO I P C R 18 E OVI, ED "I CT 2",' R P R.D -,T T�N C o'k NO[- VO." 0 Q'A C N 0 RTH Z15 -0032 Site Location / Zoning Map / / P o u, IIII IIII IIII IIII IIII IIII IIII IIII / / Q a I / IIIIIIIIIIIIIIIIIIII / III III III III VVVVV R� III� /QIIIIIIIIIIIIIIIIIIIIIVIV III I @IIIIIIIIIIIIVUIIIIIIIIIW ��pllllll III �� WTI IIIIIIIIIIIIIIIIIIIII VIIII�L ... ..........................:::: I� �NNIIIIIIIIIIIIIIIIIIIIIIIIIIII � uu'" �IWUIWIIWIIIIIIIIIIIII�VNIIWIIWIIWWIIIIIIIIIII IIIIII�IIIIIIIIIIII @pNlll @N I !!��ri� II�IIIIIIIIII�IIIpWIIIIIIW ,,,,,,,,, ........ 1' ..., ;,.... 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Utilization of this map indicates understanding and acceptance of this statement. Z15 -0032 Site Location / Future Land Use Map Community C6'1 Mixed Use t o i , o am D (,�7�� 0 D UIa:LYl.`7(ia1.1Y3U j� Low Residential,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,, %�„ � Business Innovation SITE Future Land Use v Business lInnovation l se N W' E S reer Parcels Low Residential Moderate Residential Roads Cl/ ENTON CMevelopment SerWces • GIS Date: 12/7/2015 Ehe 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. - _-11. -1 1 I A-P-o-Bl REMAINDER OF A TRACT OF LAND DESCRIBED IN A DEED TO ED WOLSKI CCF# 2005-16351 R.P.R.D,C.T. CAS EL CT #275 DENTON COUNTY, TEXA =1 145 0 0 N�l ff -T L Project Narrative Windsor Oaks Phase I,,, Denton ry 1'exas Windsor Oaks Phase I is a proposed 112 lot single family development located at the Eastern end of Windsor Drive, It is primarily zoned N- R-4, but there is a small overlap of CM--G and NRM U- 12 zoning that affects several I ots. This proposal is to rezone the overlapping areas to NR-4 so that all of the lots are zoned NR-4. 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. N W __ 4J,h1� o ,ss a szo SITE ' ,_ E� '� __ _ � 1 5.-.f Parcels DEN TON Development SerWces • GIS Roads Date: 12/7/2015 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 1 2 3 4 5 5! 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Taylor "aye", Vice-Chair Amber Briggle "aye", Commissioner Frank Dudowicz "aye", Commissioner Larry Beck "aye", and Commissioner Andrew Rozell "aye". 3. CONSENT AGENDA ------------------------------ B. Consider a Convevance Plat of the I-lickory Creep Center Addition BlockA Lots CVO and CV8, The sjjbjg�Ltj?L�)p��Ktyjs 1, cated at the smithwest corner of Teasl Lane , --------------- --- ggjqK�ffly._L�) ............................................... 0 --------- (U-M 2181 and I-lickory Creek Road i of Denton. Denton CotiEjy.T�exas, �CV 15 -0006 -C ---j- Road in the City of Denton. Denton Count HHilo iry-Creek-Cent�;_r,-LLt B�LI). C. Consider a Preliminary Plat of Lots I & 2 of Block 2 of the Caliber Collision Addition, The is _N!j Kal I located on west side of 1-35- Fro!Ltu�_R --- �L, y a oa within the 13,13,13, & .-C-,--R-,--R-,--C-o--,-St,irvey,Abstract-No, 1921_ L?j? �-fjQ.' '�Li '�Llisio Ross Ctflberts2n). --------- - C j 15C �_kj_L L 1-1- ip� ------------------ D. Consider a Final Plat of 53 lots of Fireside Park Addition. Phase 1, The a roimatel 19 acre__s,Jb )Igp t is ggj(�K�ffl and -L jg�jtj_ _�L_y ----- y-jocated- on- the -sot so �tthwest_corner_ of Hinkle-Drive ------ Windsor Street. within the Robert Beaa,irriont St,irvev. Abstract No, 31 and the N Meisenharrier-St,irvey, c�iL )Q.' Fireside Park Ad icip, Phase I Rflie �dtt Commissioner Devin Taylor motioned, Commissioner Frank Dudowicz seconded to approve Consent Agenda Items 313, 3C, and 31). Motion approved (5-0). Commissioner Devin Taylor "aye", Vice-Chair Amber Briggle "aye", Commissioner Frank Dudowicz "aye", Commissioner Larry Beck "aye", and Commissioner Andrew Rozell "aye". Consent Agenda Item 3A was heard separately. 5. PtJ13LlC HEARINGS C. Hold-a -piiblic-hearing. I consider rrialljig. 0 t 'ggj�ji jig. -------- _qjjL ----------------- LL -a-recommendation-1--Cia-L L -a or three tracts of land feet smtth of the intersecton of Ki 28' in jpg�L�L��and North L ------------------------------------------- - �L)_Op---- the Citv of Denton Denton Cog-1v Texas Tract I is a roirnatel y 13 acres in size and is cgrre tly zoned a CoMMIE ty_Mj2� t.-Jse General ----------------- C(L -(jj District, -Tract 2 is itp).L) ij!�t�j L �_LL L __y 1,08 acres in size and is ca,irrently zoned a NeiAborhood Residential Mixed t.-Jse l2 'NRM1J- 1_21_ District, Tract--3--is _g)p.L) . iji: t�l .j! acres in size and is CLg g1fl ,�)ned a ------------------- --- L �_LL L Q - --------------------------------- _E _y__Z --------- This item was heard before Consent Agenda Item 3A and the Items for Individual Considerations. Vice-Chair Briggle opened the Public Hearing. 11 1 Mike Bell, Senior Planner, presented the backup materials for this request. There were no questions 2 or discussions on this item. There was no one to speak on this item. Vice -Chair Briggle closed the 3 Public Hearing. 4 5 Commissioner Frank Dudowicz motioned, Commissioner Larry Beck seconded to approve this 6 request. Motion approved (5 -0). Commissioner Devin Taylor "aye ", Vice -Chair Amber Briggle 7 "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", and Commissioner s Andrew Rozell "aye ". 9 D. Hold —a-p bl g hear I and �_recornme d t on to C;'ogneil �� ��c��ng __ _ _ _ __ _ _ _ _ _ Rezonin p IZe vest from Nei phborhood IZesidential Mixed l-7se NI MIJ I to Commumity Mixed t. -Ise General (C'1�1 (��._Iij�;_sab���t_p1c2p t� s_ pp1c>�.m:t��y_2:� L12�s"�_ rL(�i fly located at the southwest corner of West t.-Jni ei SHN Drive and lsctor Street. Z15 -0027 Bur per 10 11 This item was heard before Consent Agenda Item 3A and prior to the Items for Individual 12 Considerations. 13 14 Vice -Chair Briggle opened the Public Hearing. 15 16 Julie Wyatt, Associate Planner, provided the backup materials for Item for Individual 17 Consideration 4C and Public Hearing Item 5D. Wyatt provided the location map and zoning map. 18 The subject site is currently zoned Neighborhood Residential Mixed Use (NRMU), the proposed 19 zoning is Community Mixed Use General (CM -G). NRMU permits restaurants, but with a 20 limitation that no drive - through service is permitted. The future land use designation for the site is 21 commercial. The Commercial uses permitted in CM -G District are consistent with the existing 22 development pattern and character along West University Drive. 23 24 Wyatt stated the applicant is proposing two six -foot monument signs along West University Drive, 25 which is less than permitted for signs along primary arterials. The current requirements permit 20- 26 foot pole signs. There would be no ground signs proposed along Ector Street. There would be a 27 six -foot masonry screening wall along the south property line to screen the development from the 28 adjacent residential development. 29 30 The subject site would also contain bicycle parking at both restaurants, along with trash cans 31 located at the exit of the drive - through lines. There was a photometric study completed which 32 indicated the proposal exceeds the permitted .5 foot - candle at the property line. The applicant is 33 also proposing crosswalks from the sidewalk along West University Drive to the front of the 34 buildings to provide safe pedestrian access. There is a proposed second access off of West 35 University Drive. 36 37 Wyatt provided the landscape proposals along with the proposed elevations for both restaurants. 38 Staff sent out 12 public notices to property owners within 200 feet of the subject site, and 43 39 courtesy notices to property owners within 500 feet of the subject site. At this time staff has 40 received two (2) returned responses in opposition, which makes up 24 %, and three (3) returned 41 responses in favor of the request. A supermajority vote would be required by City Council. Staff 7 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 16 -108, Version: 1 Agenda Information Sheet SUBJECT Willie Hudspeth regarding City Hall. City of Denton Page 1 of 1 Printed on 1/27/2016