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March 01, 2016 Agenda
ttu�Rltl �'� � k, Tuesday, March 1, 2016 City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com 12:00 PM Work Session Room & Council Chambers A quorum of the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, March 1, 2016 at 12:00 noon at City Hall, 215 E. McKinney Street, Denton, Texas. Council Member Kathleen Wazny, District 3, may participate by videoconference during the Open Meeting to be held in the City Council Chambers beginning at 6:30 p.m. The City Council Work Session will be held at 12:00 noon 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 March 1, 2016. 3. Work Session Reports A. ID 16 -261 Receive a report, hold a discussion, and give staff direction regarding the FY 2014 -15 Comprehensive Annual Financial Report and annual audit. Attachments: Exhibit 1 FY 2014 -15 CAFR B. ID 16 -317 Attachments: C. ID 16 -331 Attachments: Exhibit 2 Single Audit Report Exhibit 3 Auditor's Communication Receive a report, hold a discussion, and give staff direction regarding approval of a purchase order through the National Joint Powers Alliance (NJPA) Contract 4 022113 - CXT for the purchase of prefabricated concrete restroom buildings at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park. Exhibit 1 -Staff Memo Exhibit 2 -NJPA CXT Contract Award Exhibit 3- 2016 -011 ISR - CXT Restroom and Concession Purchase Receive a report, hold a discussion, and give staff direction regarding the City's budgeting process, financial planning assumptions, and the debt service tax rate impacts related to the 2014 bond election and upcoming issuance of Certificates of Obligation. Exhibit 1 - General Budget Presentation Exhibit 2 - Debt Tax Rate Presentation City ofDenton Page I Printed on 212612016 City Council Meeting Agenda March 1, 2016 D. ID 16 -274 Receive a report, hold a discussion, give staff direction regarding the Public Art Committee's recommendation to construct an outdoor sculpture of a 9/11 Firefighter's Memorial Bell Tower on the north side of Central Fire Station located at 332 E. Hickory St., and purchase a replica replacement bell to be located in City Hall West bell tower, as City of Denton Public Art. The Public Art Committee recommends approval (8 -0). The Historic Landmark Commission granted a Certificate of Appropriateness on February 8, 2016. Attachments: Exhibit 1 Illustration of 911 Firefighter's Memorial Bell Tower Exhibit 2 Certificate of Appropriateness Exhibit 3 Minutes Feb.4, 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 -365 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. B. ID 16 -345 Deliberations regarding Consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues involving a proposed Rayzor Ranch Public Improvement District No. 1 Reimbursement Agreement, where the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. [ID 16 -346] C. ID 16 -299 Consultation with Attorneys - Under Texas Government Code, Section 552.071; Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. Consult with the City's attorneys regarding the present status of the Denton Municipal Electric - Energy Management Organization's operations regarding EEI contract negotiation, ISDA contract negotiation, and other related contracting issues; discuss, deliberate and provide the City's attorneys and staff with direction. City ofDenton Page 2 Printed on 212612016 City Council Meeting Agenda March 1, 2016 A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. [ID 16 -286] D. ID 16 -301 Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with the City's attorneys regarding the present status of pending litigation entitled: The City of Denton, Texas v. NRG Power Marketing, LLC, et al, Cause No. 15- 01404 -16, now pending before the 16th Judicial District Court in and for Denton County, Texas; discuss, deliberate and provide the City's attorneys with direction and any recommendations regarding such legal matter. A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. [ID 16 -287] E. ID 16 -348 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests generally located at the Southeast corner of E. McKinney Street and S. Mayhill Road, the affected tract located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Mayhill Road Widening and Improvements project - Parcel M088 - BCI Real Estate Ventures, LP) [ID 16 -349] F. ID 16 -326 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 in the Gideon Walker Survey, Abstract 1330, City of Denton, Denton County, Texas and being generally located southwest of the intersection of Edwards Road and Swisher Road. 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. (Villages of Carmel, Phase 5B - prospective Parks Department property purchase) City ofDenton Page 3 Printed on 212612016 City Council Meeting Agenda March 1, 2016 G. ID 16 -347 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the E. Puchalski Survey, Abstract No. 996, located generally in the '1200 block of the east side of N. I -35E, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Denton Fire Station No. 3 Rebuild) ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071- 551.086 OF THE TEXAS OPEN MEETINGS ACT. Following the completion of the Closed Meeting, a quorum of the City Council of the City of Denton, Texas will convene in an Open Meeting in the City Council Chambers. Council Member Kathleen Wazny, District 3, may participate by videoconference during this Open Meeting. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS /PRESENTATIONS A. ID 16 -370 National Community Development Week 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. City ofDenton Page 4 Printed on 212612016 City Council Meeting Agenda March 1, 2016 1. ID 16 -358 Anyah Martinez regarding a children's museum using City Hall West as a potential space for the project. 2. ID 16 -366 Willie Hudspeth regarding City Hall. 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 — AA). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, Consent Agenda Items A — AA 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 -011 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc. in the not -to- exceed amount of $757,073). Attachments: Exhibit 1 -CXT Photos Exhibit 2- Comparison Exhibit 3 -Staff Report Exhibit 4 -NJPA Contract Award Exhibit 5- Ordinance Exhibit 6- Signed Contract B. ID 16 -121 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) for the acquisition of residential refuse and recycling carts including replacement parts, for the City of Denton Solid Waste Department; and providing an effective date (File 5997- Purchase of Residential Recycling and Refuse Carts awarded to Rchrig Pacific Company in the three (3) year not -to- exceed amount of $875,000). The Public Utilities Board recommends approval (5 -0). City ofDenton Page 5 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Attachments: Exhibit 1 -H -GAC Pricing Exhibit 2 -Staff Memo Exhibit 3 -PUB Minutes Exhibit 4- Ordinance C. ID 16 -265 Consider adoption of an ordinance (1) releasing, abandoning and vacating (a) a 28.953 acre public drainage easement recorded as Instrument No. 2002- R0073655, Real Property Records, Denton County, Texas; (b) a 13.14 acre public drainage & detention easement recorded as Instrument No. 2002- R0073656, Real Property Records, Denton County, Texas; and (c) a 0.562 acre public drainage easement recorded as Instrument No. 2002- R0073661, Real Property Records, Denton County, Texas, all located in the S. Graham Survey, Abstract No. 468, Denton County, Texas; and (2) partially releasing, abandoning and vacating a 5.324 acre public drainage easement recorded as Instrument No. 2005- 85936, Real Property Records, Denton County, Texas, and located in the M. Smith Survey, Abstract No. 1181 and the W. Smith Survey, Abstract No. 1182, Denton County, Texas; and declaring an effective date. [Abandonment of drainage easements to allow for subdivision lot sales] Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map Exhibit 3 - Ordinance D. ID 16 -271 Consider adoption of an ordinance directing the publication of Notice of Intention to issue $24,030,000 in principal amount of Certificates of Obligation of the City of Denton for General Government and Solid Waste projects; and providing for an effective date. The Audit /Finance Committee recommends approval (3 -0). Attachments: E. ID 16 -272 Attachments: Exhibit 1 - Ordinance Exhibit 2 - Red -Lined Changes to 2014 Bond Issuance Timeline Consider adoption of an ordinance issue $69,810,000 in principal am4 Denton for Waterworks and Sc providing for an effective datf approval (3 -0). Exhibit 1 - Ordinance directing the publication of Notice of Intention to int of Certificates of Obligation of the City of Ter System and Electric System projects; and The Audit /Finance Committee recommends F. ID 16 -281 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Caterpillar Model 953D track loader for the City of Denton Drainage Department; and providing an effective date (File 6070 - awarded to Holt CAT in the amount of $213,950). The Public Utilities Board recommends approval (5 -0). City ofDenton Page 6 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Standardization Memo Exhibit 3 -PUB Minutes Exhibit 4- Ordinance G. ID 16 -282 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for construction of Substation Pre -Cast Security Fences for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5963- awarded to Walsh's Hawk Construction Company, LLC in the three (3) year not -to- exceed amount of amount of $5,900,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1- Evaluation and Ranking Sheet Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract H. ID 16 -284 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager or his designee to execute an Investment Advisory Services contract with First Southwest Asset Management, Inc. for investment advisory services; providing for the expenditure of funds therefor; and providing an effective date (File 6086 in the two (2) year not -to- exceed amount of $52,000). The Audit /Finance Committee recommends approval (3 -0). Attachments: Exhibit 1- Ordinance Exhibit 2- Agreement L ID 16 -286 Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a supplemental and amended engagement letter with the law firm of David A. Portz, P.C., Houston, Texas for Professional Legal Services to be provided to the Energy Management Organization of Denton Municipal Electric; authorizing the expenditure of funds therefor; providing an effective date (File No. 5554 -in the additional amount of not -to- exceed $50,000, aggregating not -to- exceed $175,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 -PUB Minutes Exhibit 2- Ordinance Exhibit 3- Engagement Letter J. ID 16 -287 Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a second supplemental and amended engagement letter with Lloyd Gosselink Rochelle & Townsend, P.C. for professional legal services relating to the pending litigation entitled the City of Denton, Texas v NRG Power Marketing, LLC, et al; authorizing the expenditure of funds therefor; providing for retroactive confirmation, ratification and approval thereof, providing an effective date (File No. 5771 -in the additional amount of not -to- exceed $800,000, aggregating not -to- exceed $1,395,000). The Public Utilities Board recommends approval (5 -0). City ofDenton Page 7 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Attachments: Exhibit 1 -PUB Minutes Exhibit 2- Ordinance Exhibit 3- Supplemental Engagement Letter K. ID 16 -288 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a First Supplement to Amendment to an engagement letter for professional legal services by and between the City of Denton, Texas and Herrera & Boyle, PLLC. for legal services pertaining to pole attachment license agreement, right -of -way agreement, collections from Verizon and other possible pertinent agreements; providing for the expenditure of funds therefor; and providing an effective date (File No. 5592 in the additional amount of $65,000; aggregating a total not -to- exceed $130,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 -PUB Minutes Exhibit 2- Ordinance Exhibit 3- Supplemental Engagement Letter L. ID 16 -289 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of SEL protective relays, controls, monitoring, metering, software, integration, accessories, and devices for Denton Municipal Electric, which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 6046 - awarded to Schweitzer Engineering Laboratories (SEL) in the three (3) year not -to- exceed amount of $2,240,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1- Vendor Sole Source Letter Exhibit 2 -Staff Memo Exhibit 3 -PUB Minutes Exhibit 4- Ordinance Exhibit 5- Contract M. ID 16 -290 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for sports officiating services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6028 - awarded to SED Referees in the three (3) year not -to- exceed amount of $153,352). Attachments: Exhibit 1- Pricing and Evaluation Sheet Exhibit 2- Ordinance Exhibit 3- Contract N. ID 16 -291 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of uniforms for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 6025- awarded to Impact Promotional Services, dba Got You Covered Uniforms in the three (3) year not -to- exceed amount of $328,650). City ofDenton Page 8 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Attachments: Exhibit 1- Evaluation and Ranking sheet Exhibit 2- Ordinance Exhibit 3- Contract O. ID 16 -295 Consider adoption of an ordinance authorizing the City Manager to execute a "Sponsored Research Agreement" by and between the City of Denton, Texas and Southern Methodist University providing for the investigation of enhanced methane generation in the bioreactor landfill facility at the City of Denton, Texas in the not -to- exceed amount of $169,655; providing for the expenditure of funds therefor; providing for an effective date (File 6072). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 -PUB Minutes Exhibit 2- Ordinance Exhibit 3- Agreement P. ID 16 -307 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Dependent Care Services for regular full time City of Denton employees; providing for the expenditure of funds therefore; and providing an effective date (RFP 5914- awarded to Bright Horizons Family Solutions LLC, in the three (3) year not -to- exceed amount of $178,387.50). Attachments: Exhibit 1- Pricing and Evaluation Sheet Exhibit 2- Ordinance Exhibit 3- Contract Q. ID 16 -320 Consider nominations /appointments to the Tax Increment Reinvestment Zone (TIRZ) Number Two Board of Directors. R. ID 16 -321 Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $150,000 of in -kind services and resources for the Denton Arts and Jazz Festival to be held in Quakertown Park on April 29 - May 1, 2016; and providing an effective date. Attachments: Exhibit 1 Arts and JazzFest Costs Exhibit 2 2015 Running Total of Requested Support Exhibit 3 Letter of Request Exhibit 4 Ord Art and Jazz S. ID 16 -322 Consider adoption of an ordinance ratifying the expenditure of funds by the City Manager for the emergency purchase and installation of a Poured in Place (PIP) safety surface at Eureka 2 Playground 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 6071- awarded to Lea Park and Play in the amount of $84,892.60). Attachments: Exhibit 1- Comparison and Quotes Exhibit 2- Emergency Declaration Form Exhibit 3- Ordinance City ofDenton Page 9 Printed on 212612016 City Council Meeting Agenda March 1, 2016 T. ID 16 -325 Consider adoption of an ordinance establishing a Teen Council to provide a teen perspective to the Parks and Recreation Department regarding programming and community issues related to Parks programming; and provide an effective date. Attachments: Exhibit 1 - Teen Council Exhibit 2 - Teen Council Info Exhibit 3 - Ordinance U. ID 16 -335 Consider adoption of an ordinance of the City of Denton, Texas Nunc Pro Tune, correcting an inadvertent mistake in ordinance 2015 -188 relating to the annexation of an area of land to the City of Denton, Texas that was granted deferral of annexation until October 31, 2017. Attachments: Exhibit 1- Ordinance 2015 -188 Exhibit 2- Amended Ordinance V. ID 16 -338 Consider adoption of an ordinance of the City of Denton, Texas, approving an amendment to an economic development program grant agreement dated December 1, 2015, between the City of Denton and Buc -ee's, LTD., which was duly assigned, in part, to Buc -ee's, LTD.; and providing an effective date. Attachments: Exhibit 1 - Ordinance Exhibit 2 - Amendment W. ID 16 -346 Consider adoption of an ordinance of the City of Denton, Texas approving a Reimbursement Agreement amongst the City of Denton, Texas, Allegiance Hillview, L.P., and DB Denton 11, LLC related to the reimbursement of public improvements constructed within the Rayzor Ranch Public Improvement District No. 1; authorizing the City Manager to execute the Reimbursement Agreement on behalf of the City of Denton, Texas; and providing for an effective date. Attachments: Exhibit 1 Resolution R2014 -022 Exhibit 2 Ordinance 2014 -144 Exhibit 3 PID Reimbursement Ordinance X. ID 16 -349 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas ( "City "), as buyer and BCI Real Estate Ventures, L.P. (the "Owner "), as seller, to acquire fee simple to a 1.509 acre tract located in the Moreau Forrest Survey, Abstract Number 417, in the City of Denton, Denton County, Texas; (the "Property Interests ") for the purchase price of Two Hundred Twenty Three Thousand Eight Hundred Seven Dollars and No Cents ($223,807.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefor; (II) providing a savings clause; and (III) providing an effective date. (Mayhill Road Widening and Improvements project - Parcel M088 -BCI Real Estate Ventures, LP) Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map M088 BCI Exhibit 3 - Ordinance - BCI M088 Counteroffer City of Denton Page 10 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Y. ID 16 -362 Consider approval of the minutes of January 4, 5, 12, 23, 26, and 28 -29, 2016. Attachments: Exhibit 1 - January 4, 2016 minutes Exhibit 2 - January 5. 2016 minutes Exhibit 3 - January 12. 2016 minutes Exhibit 4 - January 23. 2016 minutes Exhibit 5 - January 26. 2016 minutes Exhibit 6 - January 28 -29. 2016 minutes Z. ID 16 -363 Consider adoption of an ordinance accepting a First Amendment to a Chapter 212 Texas Local Government Code Non - annexation Agreement between the City of Denton, Jean Ann Baker, and Ryan Capital Partners, LTD. to extend the term of such Agreement 120 days pending the execution of a new pre- annexation agreement with the City; authorizing the City Manager to execute the Agreement; and providing an effective date. Attachments: Exhibit 1 Ordinance 2015 -072 Exhibit 2 Non - Annexation Agreement Amendment Exhibit 3 Ordinance AA. ID 16 -364 Consider approval of the Public Art Committee's recommendation to commission artist Mick Burson for the design and installation of a mural at the Patterson - Appleton Arts Center located at 400 E. Hickory St. as Public Art for the City of Denton; and declare an effective date. The Public Art Committee recommends approval (8 -0). Attachments: Exhibit 1 Mural at PAAC Exhibit 2 Minutes Feb.4, 2016 Exhibit 3 Certificate of Appropriateness 5. PUBLIC HEARINGS A. Z15 -0029b Continue a public hearing and consider adoption of an ordinance regarding amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new sub district and development standards for a mixed use building on approximately 1.7 acres. The subject property is generally located between Oak Street and Hickory Street and 125 feet west of Fry Street. The Planning and Zoning Commission recommends denial (6 -1). A supermajority vote by Council is required for approval. The applicant has requested that this item be postponed to next regular City Council meeting, April 5, 2016. City of Denton Page 11 Printed on 212612016 City Council Meeting Agenda March 1, 2016 Attachments: Exhibit 1 -Staff Analysis Exhibit 2 -Site Location Exhibit 3- Zoning Map Exhibit 4- Future Land Use Map Exhibit 5 -Draft Fry Street Overlay District Amendment Exhibit 6 -Fry Street Overlay District Redline Exhibit 7- Proiect Narrative Exhibit 8- Public Notification Map Exhibit 9- January 27, 2016 Planning and Zoning Commission Minutes B. DCA15 -0007 Continue a public hearing and consider amending Section 35.7.9.5, 35.7.10.5, and b 35.7.13.5 of the Denton Development Code to include additional Fagade Materials as architectural requirements to the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District. The Planning and Zoning Commission recommends approval (7 -0). (DCA15 -0007, Amended Historic District Standards) Attachments: Exhibit 1 -Staff Analysis Exhibit 2- Oak - Hickory HD Map Exhibit 3 -Bell Avenue Historic CD Map Exhibit 4 -West Oak Area HD Map Exhibit 5- Public Hearing Responses Exhibit 6- Ordinance C. ID 16 -334 Hold the first of two public hearings to consider annexing approximately 4,132.40 acres of land contained in ten of the fifteen annexation areas, which received a Non - Annexation Agreement in 2010, and a one year extension in 2015 that will expire on March 16, 2016. Four of the annexation areas include approximately 2,789.14 acres of land and are primarily located within the northwestern quadrant of the City of Denton's Extraterritorial Jurisdiction (ETJ), Division 1, and are identified as PAA'1, PAA2, PAA3, and PAA4. The remaining seven areas include approximately 1,343.26 acres of land and are considered unincorporated ETJ pockets located within the body of the City of Denton's corporate limits and are identified as DH I, DH2, DH3, DH4, DH5, and DH14. Attachments: Exhibit 1 2016 Annexation Service Plan D. ID 16 -310 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as West Gate Business Park (WGBP Investments, LTD) Reinvestment Zone No. XIII for commercial /industrial tax abatement; establishing the boundaries of such zone; making findings required in accordance with Chapter 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; and providing an effective date. Attachments: Exhibit 1 Reinvestment Zone Ordinance 6. ITEMS FOR INDIVIDUAL CONSIDERATION City of Denton Page 12 Printed on 212612016 City Council Meeting Agenda March 1, 2016 A. ID 16 -309 Consider approval of a concurrent ordinance with the Cities of Bryan, Garland and Greenville, Texas electing the provisions of Subchapter C -1 of Chapter 163, Texas Utilities Code, providing for alternative governance of the Texas Municipal Power Agency; providing findings of fact; defining the boundaries of the agency; designating the name of the agency; and designating the number, place, terms, and manner of appointment of directors of the agency; providing a savings clause; providing a severability clause; providing for retroactive ratification, confirmation and approval thereof, providing an effective date. Attachments: Exhibit 1 TMPA Ordinance B. A15 -0016a Consider adoption of an ordinance establishing public hearing dates and authorizing the City Secretary to publish notice for April 5, 2016, and April 12, 2016, for annexation of an approximately 23.24 acre property generally located on the west side of Geesling Road, approximately 700 feet south of East University Drive (U.S. 380), within the Moreau Forrest Survey, Abstract No. 417, in Denton County, Texas. Attachments: Exhibit 1 Location Map Exhibit 2 Zoning Map 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. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting topics, above posted. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of , 2016 at o'clock (a.m.) (p.m.) CITY SECRETARY City of Denton Page 13 Printed on 212612016 City Council Meeting Agenda March 1, 2016 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 14 Printed on 212612016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 16 -261, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: March 1, 2016 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the FY 2014 -15 Comprehensive Annual Financial Report and annual audit. BACKGROUND Each year, the City hires an independent accounting firm to conduct an audit of the City's basic financial statements. The purpose of the audit is to express an opinion as to whether the City's financial statements present fairly, in all material respects, the financial position of the City. The annual audit report is comprised of four major components: 1) the Comprehensive Annual Financial Report (CAFR), 2) Management Letter (when appropriate), 3) Single Audit, and 4) Auditor's Communication to the Audit Committee. The CAFR represents the entire financial position of the City, specifically for the fiscal year ending September 30, 2015. The document includes the independent auditor's opinion of management's representations within the annual report. The auditors have provided the City a clean opinion (unqualified), which means that in the opinion of Weaver, LLP the City's financial statements present fairly, in all material respects, the financial position of the City. A clean or unqualified opinion is the best opinion that may be rendered in an audit of the financial statements. The Weaver audit specifically included the following items: Audit of the City's CAFR in accordance with generally accepted auditing standards. Performance of a Single Audit, which is an audit of the City's expenditures of State and Federal grant awards. An evaluation of the City's internal control over financial reporting. The auditor's examination of internal controls was conducted at a level sufficient to gain an understanding of the internal control structure to determine the nature, timing, and extent of audit procedures. The auditors did not perform an audit of internal controls, but performed limited tests of internal controls for the purpose of providing an opinion on the financial statements. Additionally, the auditors examined, on a test basis, evidence supporting amounts and disclosures in the combined financial statements. The City did not receive a management letter as there were no material weaknesses or recommendations for strengthening controls identified. The following points are highlighted as key financial information from the CAFR: City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -261, Version: 1 1. Overall positive financial results 2. General Fund balance $27.365 million 26.6 %of FY 2014 -15 final budgeted expenditures $1.526 million increase from prior year. Representatives from Weaver, LLP, will be present at the City Council meeting to provide their opinion and to answer any questions that you may have. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On March 1, 2016, The Audit/Finance Committee also received a presentation the CAFR and annual audit from representatives of Weaver, LLP. 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 FY 2014 -15 CAFR Exhibit 2: Single Audit Report Exhibit 3: Auditor's Communication Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 2 Printed on 2/26/2016 oi • VISION "Destination Denton" Denton is an identifiable and memorable destination and a community of opportunities. We achieve this by providing high quality of life through excellence in education, entertainment, and employment; neighborhood vitality and sustainability; environmental and financial stewardship; and superior public facilities and services. MISSION "Dedicated to Quality Service" The City of Denton will foster an environment that will deliver extraordinary quality service and products through stakeholder, peer group, and citizen collaboration; leadership and innovation; and sustainable and efficient use of resources. VALUES "We Care" We care about our people, our community, and our work. We do this with integrity, respect, and fairness. CITY OF DENTON, TEXAS COMPREHENSIVE ANNUAL FINANCIAL REPORT For the fiscal year ended September 30, 2015 CITY MANAGER George C. Campbell ASSISTANT CITY MANAGER AND CHIEF FINANCIAL OFFICER Bryan Langley Prepared by: Chuck Springer Director of Finance Antonio Puente Harvey Jarvis Assistant Director of Finance Controller Kevin Ann Mullen, CPA Cody Wood Assistant Controller Assistant Controller David Wilson Diane Chang, CPA Electric Accounting Manager Senior Grants Accountant Kurt Breyfogle Ed Lane, CPA Senior Accountant Senior Accountant Cindy Liang, CPA Katy Magee Accountant Accountant Lori Allen Mary Billings Accounting Technician Electric Analyst Nancy Towle Caroline Finley Budget Manager Treasury Administrator City of Denton, Texas Comprehensive Annual Financial Report For Year Ended September 30, 2015 TABLE OF CONTENTS Page INTRODUCTORY SECTION (UNAUDITED): TransmittalLetter .................................................................................................................. ............................... i OrganizationalChart ......................................................................................................... ............................... viii Certificateof Achievement .................................................................................................... .............................ix Listof Principal Officials ....................................................................................................... ..............................x FINANCIAL SECTION: IndependentAuditor's Report ............................................................................................... ............................... l Management's Discussion and Analysis ............................................................................... ..............................5 Basic Financial Statements: Government -wide Financial Statements: Statementof Net Position ........................................................................................ .............................17 Statementof Activities ............................................................................................. .............................18 Fund Financial Statements: Governmental Fund Financial Statements: BalanceSheet .................................................................................................... .............................20 Reconciliation of the Balance Sheet of Governmental Funds to the Statement of Net Position .... 21 Statement of Revenues, Expenditures and Changes in Fund Balances ............. .............................22 Reconciliation of the Statement of Revenues, Expenditures, and Changes in Fund Balances of Governmental Funds to the Statement of Activities ................................. .............................23 Statement of Revenues, Expenditures and Changes in Fund Balance — Budget to Actual GeneralFund .................................................................................................. .............................25 Proprietary Fund Financial Statements: Statementof Net Position .................................................................................. .............................26 Statement of Revenues, Expenses and Changes in Fund Net Position ............. .............................30 Statementof Cash Flows ................................................................................... .............................32 Fiduciary Fund Financial Statements: Statement of Assets and Liabilities ................................................................... .............................34 Notes to Basic Financial Statements .............................................................................. .............................35 Required Supplementary Information: Schedule of Changes in Net Pension Liability and Related Ratios — Texas Municipal Retirement System— Last Fiscal Year ................................................................................. .............................75 Schedule of Changes in Net Pension Liability and Related Ratios — Denton Firemen's Relief and Retirement Fund — Last Fiscal Year ........................................................... .............................76 Schedule of Contributions — Texas Municipal Retirement System — Last Ten Fiscal Years ......................77 Schedule of Contributions — Denton Firemen's Relief and Retirement Fund — Last Ten Fiscal Years ...... 78 Schedule of Other Postemployment Benefits — Funding Progress and Contributions — LastThree Valuation Years ................................................................................... ............................... 79 Combining and Individual Fund Financial Statements and Schedules: Schedule of Revenues, Expenditures and Changes in Fund Balances — Budget to Actual: DebtService Fund ................................................................................................... .............................81 Combining Balance Sheet — Nonma_j or Governmental Funds ...................................... ............................... 84 Combining Statement of Revenues, Expenditures and Changes in Fund Balances NonmajorGovernmental Funds ............................................................................... .............................86 City of Denton, Texas Comprehensive Annual Financial Report For Year Ended September 30, 2015 TABLE OF CONTENTS (Continued) STATISTICAL SECTION (UNAUDITED): Table Page FINANCIAL SECTION (continued): 1 Combining and Individual Fund Financial Statements and Schedules (continued): Schedule of Revenues, Expenditures and Changes in Fund Balances — Budget to Actual: Changes in Net Position ............................................................... ............................... ............................112 Recreation........................................................................................................ ............................... 88 PoliceConfiscation ......................................................................................... ............................... 89 Touristand Convention ..................................................................................... .............................90 Changes in Fund Balances of Governmental Funds ..................... ............................... ............................118 StreetImprovement Fund .................................................................................. .............................91 5 GasWell Revenues Fund .................................................................................. .............................92 Citizens' Park Trust ........................................................................................... .............................93 Property Tax Rates (Per $100 of Assessed Value) — Direct and Overlapping Governments ..................122 Combining Statement of Net Position — Internal Service Funds .................................... .............................96 7 Combining Statement of Revenues, Expenses and Changes in Fund Net Position - InternalService Funds ............................................................................................. .............................98 Property Tax Levies and Collections ........................................... ............................... ............................126 Combining Statement of Cash Flows — Internal Service Funds ..... ............................... ............................100 9 Combining Statement of Assets and Liabilities — Agency Funds .. ............................... ............................102 Combining Statement of Changes in Assets and Liabilities — Agency Funds .............. ............................103 Ratio of General Bonded Debt Outstanding ................................. ............................... ............................130 Capital Assets Used in the Operation of Governmental Funds: 11 Comparative Schedules by Source ................................................. ............................... ............................105 Schedule by Function and Activity ................................................ ............................... ............................106 Pledged Revenue Coverage .......................................................... ............................... ............................132 Schedule of Changes by Function and Activity ............................. ............................... ............................107 13 STATISTICAL SECTION (UNAUDITED): Table 1 Net Position by Component ......................................................... ............................... ............................110 2 Changes in Net Position ............................................................... ............................... ............................112 3 Fund Balances of Governmental Funds ....................................... ............................... ............................116 4 Changes in Fund Balances of Governmental Funds ..................... ............................... ............................118 5 Assessed Value and Estimated Actual Value of Taxable Property ............................. ............................120 6 Property Tax Rates (Per $100 of Assessed Value) — Direct and Overlapping Governments ..................122 7 Principal Property Taxpayers ....................................................... ............................... ............................124 8 Property Tax Levies and Collections ........................................... ............................... ............................126 9 Ratio of Outstanding Debt by Type .............................................. ............................... ............................128 10 Ratio of General Bonded Debt Outstanding ................................. ............................... ............................130 11 Direct and Overlapping Governmental Activities Debt ............... ............................... ............................131 12 Pledged Revenue Coverage .......................................................... ............................... ............................132 13 Demographic and Economic Statistics ......................................... ............................... ............................134 14 Principal Employers ..................................................................... ............................... ............................135 15 Full -Time Equivalent City Government Employees by Function /Program ................ ............................136 16 Operating Indicators by Function/ Program .................................. ............................... ............................138 17 Capital Asset Statistics by Function/ Program .............................. ............................... ............................140 OTHER SUPPLEMENTAL INFORMATION: Schedule of Expenditures — Budget and Actual — General Fund ... ............................... ............................143 � •i February 24, 2016 The Honorable Mayor and Members of the City Council City of Denton Denton, Texas It is with great pleasure that we present to you a copy of the Comprehensive Annual Financial Report (CAFR) of the City of Denton (the City) for the fiscal year ended September 30, 2015. The purpose of the report is to provide the City Council, management, citizens, and other interested parties with detailed information concerning the City's financial condition. THE REPORT The Texas Local Government Code (§ 103.001) requires an annual audit for municipalities. In addition, the City Charter (Section 2.13) requires a Certified Public Accountant who, as of the end of the fiscal year, shall make an "independent audit of accounts" and prepare a report to the City Council and the City Manager. This document fulfills the above mentioned requirements, and the independent auditor's opinion is included in the report for the fiscal year ended September 30, 2015. The CAFR is presented in three main sections: Introductory, Financial, and Statistical. The Introductory Section includes this transmittal letter, the City's organizational chart, and a list of principal officials. The Financial Section includes the Management's Discussion and Analysis (MD &A), Basic Financial Statements, Required Supplementary Information, Combining and Individual Fund Financial Statements, along with the independent auditors' report. The Statistical Section and Other Supplementary Information include selected financial and demographic information, generally presented on a multi -year basis. The responsibility for both the accuracy of the presented information and the completeness and fairness of the presentation of the data, including all disclosures, rests with the City. To the best of our knowledge and belief, the enclosed data is accurate in all material respects and is reported in a manner designed to fairly present the results of our operations in each of the various funds reported by the City. All disclosures necessary to enable the reader to gain an understanding of the City's financial activities have been included. The accounting firm of Weaver and Tidwell, L.L.P. has issued an unmodified opinion on the City of Denton's financial statements for the period ended September 30, 2015. As a recipient of federal and state grant awards, a separate audit is prepared to meet the requirements of the Single Audit Act Amendments of 1996 and related OMB Circular A -133. As a part of the City's single audit, tests are conducted to determine that the City has complied with applicable laws and regulations related to federal awards. Management's Discussion and Analysis (MD &A) immediately follows the independent auditors' report and provides a narrative introduction, overview, and analysis of the basic financial statements. The MD &A complements this letter of transmittal and should be read in conjunction with it. PROFILE OF THE GOVERNMENT Originally incorporated on September 26, 1866, the City of Denton is now 97.411 square miles and has an estimated population of 120,945. The City is a home rule city and operates under the Council- Manager form of government. The elected seven - member council consists of a Mayor and six Council Members. The Mayor and two Council Members are elected at large, while the remaining representatives are elected from single member districts. The City Council enacts local laws, determines policy, and adopts the annual budget, and the City Manager is the chief executive officer for the City. The City of Denton is located in the northern portion of the Dallas /Fort Worth Consolidated Metropolitan Statistical Area (CMSA). The City is a part of the Dallas /Fort Worth Metroplex, and is situated at the apex of a triangle based by Dallas (37 miles to the southeast) and Fort Worth (35 miles to the southwest) providing excellent access to and from all parts of the area. The City provides a full range of general government services to its citizens including: public safety (police and fire protection); public works (construction and maintenance of highways, streets and infrastructure); parks and recreation; library; planning and zoning; economic development; and general administrative services. The City's enterprise fund operations consist of a utility system, solid waste, and airport operations. The City's utility system provides electric, water and wastewater services. The internal service operations consist of the Materials Management, Fleet Services, Risk Retention, Health Insurance, Engineering Services and Technology Services funds. The Materials Management Fund accounts for the financing of Warehouse and Purchasing services which are provided to other City departments. The Fleet Services Fund accounts for the financing of goods and services provided by the municipal garage to other departments within the City. The Risk Retention Fund accounts for the accumulation of resources for the payment of workers' compensation, general liability claims, and insurance policies. The Health Insurance Fund accounts for administration of the self - insurance program for health coverage in the City. The Engineering Services Fund accounts for the provision of internal engineering services to various City operations and capital projects. The Technology Services Fund provides support for the various information and computer systems within the City. The financial statements presented include all government activities, organizations, and functions for which the City is financially accountable as defined by the Governmental Accounting Standards Board (GASB). LOCAL ECONOMY The City of Denton's tax base continues to grow with an average growth rate of 5.97% over the last 10 years. Recently, the City's tax base grew by 3.91% in FY 2013 -14, 11.72% in FY 2014 -15 and 8.54% in FY 2015 -16. After property tax revenues, the second largest source of revenue in the General Fund is sales tax. Representing approximately 32% of overall revenue in the General Fund, sales tax is a significant revenue source that is dependent upon a variety of economic factors. For FY 2014 -15, total sales tax revenues equaled $30,601,965, which is $2,837,851 or 10.2 %, more than the prior year collections of $27,764,114. For FY 2015 -16, sales tax collections are conservatively budgeted to increase by 1.1% over FY 2014 -15 actual receipts. Increased strength in employment and growth in new residential and commercial construction are leading indicators of continued growth in the City's property tax base and sales tax collections. The City of Denton's not seasonally adjusted unemployment rate remains well below state and national levels at 3.3 percent in 2015 which declined from 4.1 percent for 2014. The State of Texas not seasonally adjusted unemployment rate has also declined from 5.1 percent in 2014 to 4.4 percent in 2015. The City of Denton has issued 784 residential and commercial building permits for calendar year 2015, at an estimated value of $495 million. This compares to a total of 686 commercial and residential permits issued for calendar year 2014 at an estimated value of $368 million. The following two charts highlight the strength of the local economy over the last ten years by displaying the City of Denton's unemployment rate compared to Texas and the United States and the taxable property values per capita in the City of Denton. 11 Aire ire UalI Unemployment to -for U.S.Jexas, and Den-Loin (Not Seasonally Adjusted) 1.0.0% 1 axable Property Value Per Capita (City of Denton) $80,000 III Fiscal year 2014 -15 brought exciting news in economic development. Listed below are just a few of the highlights: The Rayzor Ranch mixed -use development has received a great deal of attention and interest from the community. Rayzor Ranch Marketplace located in the north side of the development has constructed over 400,000 square feet of retail and commercial space. Sam's Club and Wal -Mart anchor the Market Place with 137,381 and 189,929 square feet, respectively. Some of the new stores in the development include: Academy Sports and Outdoors, Salons by JC, Colorful Hearing, Kohl's, Boot Barn, and DK Foot and Casual. A 33,000 square foot building, which will house Guitar Center and a retail tenant, opened in October, 2015. A Taco Cabana has also opened in the Marketplace. • Two phases are planned for the Rayzor Ranch Town Center, located on the south side of the development. Heritage Trail Boulevard will be constructed to allow access to the two phases on the east side of the development. Phase I, which will be completed in 2016, includes the construction of a Cinemark Movie Bistro, WinCo, Chili's, Raising Cane, and an In -N -Out Burger. This phase also includes a Convention Center and Hotel described in more detail in the next paragraph. O'Reilly Hotel Partners Denton's (OHPD) convention center and hotel development plans include the construction of a 285 -318 room Embassy Suites Hotel, an approximately 70,000 square foot convention center, and a Houlihan's restaurant. The anticipated convention center meeting space is approximately 37,850 square feet. The meeting space would be of sufficient size to accommodate conventions with up to 650 participants with a Grand Banquet room that will hold up to 1,750 people for banquet -style events. The hotel and convention center would be managed by O'Reilly Hospitality Management (OHM). The convention center and hotel will be located in the Rayzor Ranch Town Center. As a major anchor for the Town Center, the convention center and hotel can capitalize on the synergy associated with the planned shopping, entertainment, and restaurants located nearby. The Railyard (Stoke) downtown project is located in the Tax Increment Reinvestment Zone (TIRZ) Number One, Downtown Implementation Plan (DTIP) and Transit Oriented Development (TOD) area. Rail Yard Partners, LTD. is renovating an existing 28,000 square foot building as a part of a larger transit - oriented catalyst project. They will invest an initial $12 million in the co- working and mixed -use space. The City will lease 9,216 square feet for a collaborative working space. A separate Agreement with the Dallas Entrepreneur Center (DEC) is planned. The DEC, which has similar entrepreneur resource centers in Addison and North Dallas, would offer memberships, technical assistance, mentorship and program events to help foster local business growth in Denton. The development also includes a residential component with 110 apartment/loft units. WinCo Foods has acquired approximately 77 acres in the Westpark Tax Increment Reinvestment Zone Number Two area of Denton. They plan on constructing a regional, multi -state distribution facility for consumer products. The 800,000 + /- square foot distribution facility is to be located on the west side of Western Boulevard, just north of Airport Road. WinCo is a regional retailer with multiple distribution facilities across the United States. This particular project would include approximately $130 million in capital investment and would create 165 jobs with an annual payroll of around $7.2 million. LONG -TERM FINANCIAL PLANNING In conjunction with this document, interested parties are encouraged to read the City of Denton's FY 2015 -16 Annual Budget document. This document details the City's strategic plan, long -term financial policies, program accomplishments, and other key initiatives. The document also includes the long -term financial forecasts for each 1V of the major funds, and a summary of the assumptions that are included in these plans. In addition, the budget document provides an overview of the adopted Capital Improvement Program and planned future debt issuances. The budget document can be obtained from the City of Denton's Finance Department by calling (940) 349 -8260. The Annual Budget can also be accessed through the City's web site at www.cilyofdenton.com and selecting the Finance Department under the "Departments and Services" link. RELEVANT FINANCIAL POLICIES The City of Denton maintains reserve balances for emergencies. In the General Fund, the target reserve level is 15 -20% of budgeted expenditures to provide stability and flexibility for the organization. The actual reserve level has exceeded this target for the current fiscal year. As described in the accompanying CAFR document, the unassigned fund balance is $27.4 million, or 26.6 %, of the budgeted General Fund expenditures for the fiscal year ended September 30, 2015. Beginning in FY 2011 -12, the City adopted a policy which requires a minimum ending working capital balance (current assets minus current liabilities) of at least 8% of budgeted expenditures for the Electric, Water, Wastewater and Solid Waste Funds. If the working capital level should fall below the desired minimum, the City will implement necessary corrective action with a five -year plan to restore the working capital balance to 8% of budgeted expenditures. Additionally, rate reserve levels were established for the Electric, Water, Wastewater, and Solid Waste Funds in FY 2011 -12 according to the unique operational aspects of each utility. The rate reserve levels were revised in FY 2012 -13 and FY 2014 -15 based on the factors of revenue stability, expense volatility, infrastructure age, debt levels and management plans for the use of these reserves. The rate reserve level is established at a range of 8% to 12% of expenses for the Electric Fund, at a range of 12% to 16% of expenses for the Wastewater Fund, at a range of 17% to 25% of expenses for the Water Fund, and at a range of 4% to 8% of expenses for the Solid Waste Fund. If the rate reserve level falls below the range, the City will implement necessary corrective action within a five -year plan to restore the balances to the levels outlined above. The City of Denton has adopted an Investment Policy which guides the investment of all City funds. In accordance with State law, the policy is reviewed annually by the City Council to ensure that public funds are being invested in a conservative and prudent fashion. In addition, the City also annually reviews and approves a Debt Management policy. The purpose of this policy is to provide general guidelines regarding the issuance of City debt and the use and limitation of such debt. The City complied with all aspects of the Investment and Debt Management policies during FY 2014 -15. MAJOR INITIATIVES In FY 2014 -15, the City continued to emphasize street maintenance and repair activities as funding in the Street Improvement Fund was increased $1.8 million. The staffing level in this fund was increased with the addition of two field service positions. In addition, capital funding of $575,715 was approved for equipment purchases and $200,000 for an updated Overall Conditions Index (OCI) study. Transportation funding will increase by $250,421 for a new Bicycle and Pedestrian Coordinator position, LED light replacements, traffic counts, and traffic signal battery backups. In addition to improving the City's street infrastructure, the enhancement of public safety is also identified in the Strategic Plan as a major initiative. Accordingly, the FY 2014 -15 General Fund budget included $423,400 in funding enhancements for public safety programs. These enhancements included the addition of three police officers to assist during times of peak demand, the reclassification of an administrative assistant in the Fire Department to full -time from part-time, and the purchase of electronic ticket writers by the Municipal Court to improve the efficiency of parking enforcement by Texas Woman's University. Employee compensation remained a continuing priority for FY 2014 -15 with an average 3% merit increase provided to all employees along with eligible step increases for all police and fire civil service personnel. In addition, funding was provided for equity pay adjustments for employees whose salary was below the market rate v for their positions. Another major funding program was the downtown technology initiative budgeted in the amount of $220,000. This program is structured to incentivize innovative and creative technology companies to invest and locate in central Denton. The General Fund budget also included the funding of two building inspectors and a permit technician to maintain service levels due to increased development, funding for increased right -of- way maintenance through contracted services, and funding of needed replacement of half of the Library's self - service equipment. AWARDS AND ACKOWLEDGEMENTS The Government Finance Officers' Association (GFOA) awarded a Certificate of Achievement for Excellence in Financial Reporting to the City for its Comprehensive Annual Financial Report for the fiscal year ended September 30, 2014, for the thirtieth consecutive year. In order to be awarded the Certificate of Achievement in Financial Reporting, the City must publish an easily readable and efficiently organized Comprehensive Annual Financial Report. This report satisfies both generally accepted accounting principles and applicable legal requirements. The Certificate of Achievement is held for a period of one year only. We believe our current Comprehensive Annual Financial Report continues to meet the Certificate of Achievement requirements, and we are submitting it to GFOA to determine its eligibility for another certificate. The City also received the GFOA award for Distinguished Budget Presentation for its fiscal year 2014 -15 Annual Budget for the twenty -ninth consecutive year. In order to qualify for the Distinguished Budget Presentation Award, the City's budget document was judged according to its compliance with specific guidelines established by GFOA. These guidelines help ensure that Denton's budget is distinguished as an operations guide, financial plan, policy document, and communications device. The City has submitted its fiscal year 2015 -16 Annual Budget to GFOA to determine its eligibility for another certificate. We believe it continues to meet the Distinguished Budget Presentation Award criteria. In 2015, the City's Purchasing Department earned the Excellence in Procurement Award from the National Purchasing Institute, Inc. (NPI) for the seventeenth year in a row. This award is achieved by those organizations that demonstrate excellence in procurement by achieving a high score on standardized criteria designed to measure innovation, professionalism, productivity, and leadership. NPI represents purchasing officials employed by national, state, and local governments; educational institutions; and tax - supported and public entities throughout the country. We would like to thank the City Council for their strong leadership and support that helped make the presentation of this report possible. We would also like to thank the City Manager, Finance staff, department directors, division heads and especially the Accounting Division staff for their diligent efforts in the preparation of the annual financial report. Bryan Langley Chuck Springer Chief Financial Officer Director of Finance vi Vll Assistant City Manager Administrative Services City Manager's Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . City Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reprographics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finance AccountinglBudget(Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Municipal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materials Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Customer Service Human Resources .............................I L Risk Management /Health Ins. ....... .....................Technology Services ........................... L............ ............................... Library............. ..............................I Boards, Commissions, & Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Municipal Judge Assistant City Manager Electric Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Environmental Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Water/Wastewater Utilities Citizens .City Council ....... ..............................� ..... ................ .....................CityAttomey City . Manager ...... ..............................� Water Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wastewater Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drainage Vlll Assistant City Manager Assistant City Manager .......................... Parks . &. Recreation ............................. ....................... .........................Fire .. ...................Planning .. &. Development .......................I ................... ..........................Police — Building lnspedions LI Animal Services ........................Solid Waste Operations................... ............Community Improvement Services............ ...SociaLServicesLCommunity Development.. ... ............................... Transportation .............................. .... ............................Gas Well. Review. ............................... .......... ..........................Fleet Services......... ........................ ...........Economic Development .....0 .................................a.......,... .... ,......,.................�..... 1 Facilities Management P1011ntergovenmental Relations ...................... ....... ....................Engineering .Services Government Finance Officers Association Certificate of Achievement for Excellence in Financial Reporting Presented to City of Denton Texas For its Comprehensive Annual Financial Report for the Fiscal Year Ended September 30, 2014 */4*1 � .:�/i ill/ / /'„ /!/ ^/iii r. « Director/CEO Executive Mayor Councilmember Councilmember Councilmember Councilmember Councilmember Councilmember Title Title CITY OF DENTON, TEXAS List of Principal Officials September 30, 2015 ELECTED OFFICIALS CITY OFFICIALS City Manager Assistant City Manager Assistant City Manager Assistant City Manager / Chief Financial Officer Assistant City Manager City Attorney Municipal Judge City Secretary x Name Chris Watts Keely Briggs Dalton Gregory Joey Hawkins Greg Johnson Kevin Roden Kathleen Wamy Name George C. Campbell Howard Martin Jon Fortune Bryan Langley John Cabrales Anita Burgess Robin Ramsay Jennifer Walters w , e av e , INDEPENDENT AUDITOR'S REPORT To the Honorable Mayor and Members of City Council City of Denton, Texas Report on the Financial Statements We have audited the accompanying financial statements of the governmental activities, the business -type activities, each major fund, and the aggregate remaining fund information of City of Denton, Texas (the City) as of and for the year ended September 30, 2015, and the related notes to basic financial statements, which collectively comprise the City's basic financial statements as listed in the table of contents. Management's Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error. Auditor's Responsibility Our responsibility is to express opinions on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinions. AN INDEPENDENT MEMBER OF WEAVER AI' D TVV: WEV...V..., V....V....Pp 12221 MERIT DRIVE, SUITE 1400, DALLAS, TX 75251 BAKER TILLY INTERNATIONAL CERTIFIED PUBLIC ACCOUNTANTS AND ADVISORS P: 972.4901970 F: 972702.8321 City of Denton, Texas Page 2 Opinions In our opinion, the financial statements referred to above present fairly, in all material respects, the respective financial position of the governmental activities, the business -type activities, each major fund, and the aggregate remaining fund information of the City, as of September 30, 2015, and the respective changes in financial position and, where applicable, cash flows thereof for the year then ended in accordance with accounting principles generally accepted in the United States of America. Emphasis of Matter As discussed in Note I.F. to the financial statements, the City adopted new accounting guidance, GASB Statement No. 68, Accounting and Financial Reporting for Pensions - an Amendment of GASB Statement No. 27, and GASB Statement No. 71, Pension Transition for Contributions Made Subsequent to the Measurement Date, an Amendment of GASB Statement No. 68, as of September 30, 2015. Also discussed in Note I.F. to the financial statements, the City made a prior period adjustment for the accrual for compensated absences, as of September 30, 2015. Our opinion is not modified with respect to these matters. Other Matters Required Supplementary Information Accounting principles generally accepted in the United States of America require that the Management's Discussion and Analysis; Budgetary Comparison Schedule - General Fund; Schedule of Changes in Net Pension Liability and Related Ratios and Schedule of Contributions; Schedule of Funding Progress, and the notes to the required supplementary information on pages 5 through 15 and 75 through 79 be presented to supplement the basic financial statements. Such information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board, who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic, or historical context. We have applied certain limited procedures to the required supplementary information in accordance with auditing standards generally accepted in the United States of America, which consisted of inquiries of management about the methods of preparing the information and comparing the information for consistency with management's responses to our inquiries, the basic financial statements, and other knowledge we obtained during our audit of the basic financial statements. We do not express an opinion or provide any assurance on the information because the limited procedures do not provide us with sufficient evidence to express an opinion or provide any assurance. Other Information Our audit was conducted for the purpose of forming opinions on the financial statements that collectively comprise the City's basic financial statements. The introductory section, combining and individual fun financial statements and schedules, capital assets used in the operation of governmental fund schedules, other supplementary information, and statistical section are City of Denton, Texas Page 3 presented for purposes of additional analysis and are not a required part of the basic financial statements. The combining and individual fund financial statements and schedules, capital assets used in the operation of governmental funds schedules, and other supplementary information is the responsibility of management and were derived from and relate directly to the underlying accounting and other records used to prepare the basic financial statements. Such information has been subjected to the auditing procedures applied in the audit of the basic financial statements and certain additional procedures, including comparing and reconciling such information directly to the underlying accounting and other records used to prepare the basic financial statements or to the basic financial statements themselves, and other additional procedures in accordance with auditing standards generally accepted in the United States of America. In our opinion, the other supplementary information is fairly stated, in all material respects, in relation to the basic financial statements as a whole. The introductory and statistical sections have not been subjected to the auditing procedures applied in the audit of the basic financial statements and, accordingly, we do not express an opinion or provide any assurance on them. Other Reporting Required by Government Auditing Standards In accordance with Government Auditing Standards, we have also issued our report dated February 24, 2016, on our consideration of the City's internal control over financial reporting and on our tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters. The purpose of that report is to describe the scope of our testing of internal control over financial reporting and compliance and the results of that testing, and not to provide an opinion on internal control over financial reporting or on compliance. That report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the City's internal control over financial reporting and compliance. WEAVER AND TIDWELL, L.L.P. Dallas, Texas February 24, 2016 3 � •i CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS SEPTEMBER 30, 2015 The City of Denton's Management's Discussion and Analysis is designed to (a) assist the reader in focusing on significant financial issues, (b) provide an overview of the City's financial activity, (c) identify changes in the City's financial position (its ability to address the next and subsequent years' challenges), (d) identify any material deviations from the financial plan (the approved budget), and (e) identify individual fund issues or concerns. Since the Management's Discussion and Analysis (MD &A) is designed to focus on the current year's activities, resulting changes and currently known facts, please read it in conjunction with the Transmittal Letter (beginning on page i) and the City's financial statements (beginning on page 17). FINANCIAL HIGHLIGHTS • The assets of the City exceeded its liabilities at the close of the fiscal year ended September 30, 2015 by $716,148,019 (net position). Of this amount, $113,766,926 (unrestricted net position) may be used to meet the government's ongoing obligations to citizens and creditors. • The City's total net position decreased by $4,346,897. This decrease can be attributed to the implementation of GASB 68, "Accounting and Financial Reporting for Pensions -an amendment of GASB Statement No. 27, " for the pension obligations. As of September 30, 2015, the City's governmental funds reported combined fund balances of $112,994,323, an increase of $22,430,085 in comparison with the prior fiscal year. Compared to the prior year, revenues were higher by $8.0 million due primarily to higher property and sales tax of $8.5 million, higher fines and forfeitures of $0.2 million, franchise fees of $1.0 million, licenses and permits of $0.8 million, and investment revenue of $0.2 million. The higher revenues were offset by lower intergovernmental revenues of $0.8 million, miscellaneous revenues of $1.3 million and fees for service of $0.8 million. Expenditures reflect higher costs for public safety of $2.6 million, higher costs for public works of $2.6 million, higher costs for general government of $1.1 million, higher costs for parks and recreation of $0.5 million, and higher capital expenditures of $3.0 million. Total expenditures of the City's combined governmental funds are $11.0 million higher than the prior year. New proceeds from the issuance of long -term debt added $29.2 million in new funding. Net transfers changed by a positive $0.6 million, from $0.9 million net transfer in fiscal year 2014, to a net transfer in of $1.5 million in fiscal year 2015. Approximately 24.1% of the $112,994,323, or $27,291,311, is available for spending at the government's discretion (unassigned fund balance) The City's total noncurrent liabilities, including other noncurrent liabilities, increased by $142,633,948 during the fiscal year. The primary reasons for the changes are the issuance of $37.6 million of general obligation refunding and improvement bonds, $93.0 million of certificates of obligation, and the issuance of $33.9 million of general obligation refunding bonds, offset by the normal pay down of general obligation bonds and certificates of obligation of $33.5 million, and the normal pay down of revenue bonds of $11.6 million. The general obligation refunding bonds refunded $12.1 million of general obligation bonds, $4.2 million of certificates of obligation and $37.3 million of revenue bonds. In addition to issuance and pay down of debt, the City implemented GASB 68 adding $72.7 million to the total noncurrent liabilities for pension obligations. Additional information on the City's long -term debt can be found in note IV. G. on pages 53 - 57 of this report. OVERVIEW OF THE FINANCIAL STATEMENTS The Management's Discussion and Analysis is intended to serve as an introduction to the City of Denton's basic financial statements. The City's basic financial statements are comprised of three components: (1) government - wide financial statements, (2) fund financial statements and (3) notes to the financial statements. This report also contains other supplementary information in addition to the basic financial statements themselves. Government -wide Financial Statements. The government -wide financial statements are designed to provide readers with a broad overview of the City's finances in a manner similar to private- sector business. CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 The statement of net position presents information on all of the City's assets, liabilities, deferred inflows, and deferred outflows with the difference reported as net position. Over time, increases or decreases in net position may serve as a useful indicator of whether the financial position of the City is improving or deteriorating. The statement of activities presents information showing how the City's net position changed during the most recent fiscal year. All of the current year's revenues and expenses are taken into account regardless of when cash is received or paid. Thus, revenues and expenses are reported in this statement for some items that will only result in cash flows in future fiscal periods (e.g., uncollected taxes and earned but not used vacation leave). Both the statement of net position and the statement of activities are prepared using the accrual basis of accounting as opposed to the modified accrual basis. In its Statement of Net Position and the Statement of Activities, the City is divided between two kinds of activities: Governmental activities. Most of the City's basic services are reported here, including police, fire, libraries, development, public services and operations, public works, building inspection, technology services and general administration. Property taxes, sales taxes, and franchise fees finance most of these activities. Business -type activities. The City charges a fee to customers to cover the cost of services it provides. The City's utility systems (electric, water and wastewater), solid waste and airport activities are reported here. The government -wide financial statements can be found on pages 17 - 19 of the report. Fund Financial Statements. A fund is a grouping of related accounts used to maintain control over resources that have been segregated for specific activities or objectives. Fund financial statements provide detailed information about the most significant funds, not the City as a whole. Some funds are required to be established by state law or bond covenants. However, the City Council establishes many other funds to help it control and manage money for particular purposes or to show that it is meeting legal responsibilities for using certain taxes, grants and other monies. The below illustration summarizes the major features the City's financial statements. CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 Major Features of City of Denton's Government -wide and Fund Financial Statements Fund Statements Government -wide Statements Governmental Funds Proprietary Funds Required financial Statement of net position Balance Sheet Statement of net position statements Statement of activities Statement of revenues, Statement of revenues, expenditures and changes in expenses and changes in net fund balances position Statement of cash flows Types of asset /liability All assets and liabilities, Only assets expected to be All assets and liabilities, both information both financial and capital, used up and liabilities that financial and capital, short - short -term and long -term come due during the year or term and long -term soon thereafter; no capital assets included All of the funds of the City can be divided into three categories: governmental funds, proprietary funds and fiduciary funds. Governmental funds. The majority of the City's basic services are reported in governmental funds, which focus on how money flows into and out of those funds and the balances left at year -end that are available for spending. These funds are reported using an accounting method identified as the modified accrual basis of accounting, which measures cash and all other financial assets that can readily be converted to cash. The governmental fund statements provide a detailed short-term view of the City's general government operations and the basic services it provides. Governmental fund information helps the reader determine whether there are more or fewer financial resources that can be spent in the near future to finance the City's programs. By comparing information presented for governmental funds with similar information presented for governmental activities in the government -wide financial statements, readers may better understand the long -term impact of the government's near -term financing decisions. The relationship or differences between governmental activities (reported in the Statement of Net Position and the Statement of Activities) and governmental funds are detailed in a reconciliation following the fund financial statements. The City of Denton maintains twelve governmental funds. Information is presented separately in the governmental funds balance sheet and in the governmental funds statement of revenues, expenditures and changes in fund balances for the general fund, debt service fund and capital projects fund, all of which are considered to be major funds. Data from the other nine governmental funds are combined into a single, aggregated presentation. Individual fund data for eight of these non -major governmental funds along with an aggregate of all other is provided in the form of combining statements elsewhere in this report. Proprietary funds. The City charges customers for certain services it provides, whether to outside customers or to other units within the City. These services are generally reported in proprietary funds. Proprietary funds are reported in the same manner that all activities are reported in the Statement of Net CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 Position and the Statement of Activities. In fact, the City's enterprise funds (a component of proprietary funds) are similar to the business -type activities that are reported in the government -wide statements but provide more detail and additional information, such as cash flows. The internal service funds (the other component of proprietary funds) are utilized to report activities that provide supplies and services for the City's other programs and activities, such as the City's municipal warehouse, the City's self - insurance fund, and the City's equipment maintenance function. Because these services benefit both governmental and business -type functions, they have been included in both the governmental and business -type activities in the government -wide financial statements. The City of Denton maintains five enterprise funds. The City uses enterprise funds to account for its electric, water and wastewater systems, solid waste, and airport operations. The funds provide the same type of information as the government -wide financial statements, only in more detail and include the internal service fund -type activity. The City considers all enterprise funds to be major funds. Fiduciary funds. Fiduciary funds are used to account for resources held for the benefit of parties outside the government. Fiduciary funds are not reflected in the government -wide financial statement because the resources of those funds are not available to support the City's own programs. The accounting used for fiduciary funds is much like that used for proprietary funds. Agency funds are a component of fiduciary funds. Agency funds differ from other fiduciary funds in that they do not typically involve a formal trust agreement. Agency funds are used to account for situations where the City's role is purely custodial, such as receipt, temporary investment and remittance of fiduciary resources to individuals, private organizations, or other governments. The City maintains three fiduciary funds which include the payroll fund, developers' escrow fund, and other agency funds. The City uses agency funds to account for the collection and payment of the City's payroll and associated liabilities, employee- purchased insurance and other similar relationships. Notes to the financial statements. The notes provide additional information that is essential to a full understanding of the data provided in the government -wide and fund financial statements. The notes to the financial statements can be found on pages 35 - 74 of this report. GOVERNMENT -WIDE FINANCIAL ANALYSIS As of September 30, 2015, the City's combined net position were $716,148,019, of which $146,354,778 can be attributed to governmental activities and $569,793,241 attributed to business -type activities. This analysis focuses on the net position (Table 1) and changes in net position (Table 2) of the City's governmental and business -type activities. The largest portion of the City's net position (75.0 %) reflects its investment in capital assets (e.g., land, building, machinery and equipment), less any related debt used to acquire those assets that is still outstanding. The City uses these capital assets to provide services to citizens; consequently, these assets are not available for future spending. Although the City's investment in its capital assets is reported net of related debt, it should be noted that the resources needed to repay this debt must be provided from other sources, since the capital assets themselves cannot be used to liquidate these liabilities. CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 Table 1 Net Position (in thousands) Governmental Activities Business -type Activities Total Deferred inflows of resources Net position: Net investment in capital assets Restricted Unrestricted Total net position 82 - 56 138 141,915 2015 2014 2015 2014 2015 2014 Current and other assets $ 212,610 $ 194,311 $ 395,349 $ 378,877 $ 607,959 $ 573,188 Capital assets, net of accumulated depreciation 228,555 212,487 792,582 715,611 1,021,137 928,098 Total assets 441,165 406,798 1,187,931 1,094,488 1,629,096 1,501,286 Deferred outflows of resources 11,727 1,336 9,161 4,466 20,888 5,802 Long -term liabilities outstanding 195,143 127,997 555,840 480,352 750,983 608,349 Other liabilities 111,312 110,892 71,403 67,352 182,715 178,244 Total liabilities 306,455 238,889 627,243 547,704 933,698 786,593 Deferred inflows of resources Net position: Net investment in capital assets Restricted Unrestricted Total net position 82 - 56 138 141,915 128,915 421,894 383,678 563,809 512,593 13,215 12,233 25,357 28,057 38,572 40,290 (8,775) 28,097 122,542 139,515 113,767 167,612 $ 146,355 $ 169,245 $ 569,793 $ 551,250 $ 716,148 $ 720,495 Governmental activities increased the City's net position by $16,357,607 with a prior period adjustment decreasing governmental activities by $39,247,319. Business -type activities increased the City's net position by $38,464,683 with a prior period adjustment decreasing business -type activities by $19,921,868. The key elements of these increases are contained in Table 2. 0 CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 Table 2 Changes in Net Position (in thousands) Governmental Business -type Activities Activities Total 2015 2014 2015 2014 2015 2014 Revenues: 31,260 30,477 - - Program Revenues: 58,132 56,894 - - Charges for services $ 18,274 $ 18,429 $ 266,428 $ 241,765 Operating grants and contributions 3,380 3,410 - - Capital grants and contributions 10,443 12,506 8,594 5,656 General Revenues: - - 158,107 157,906 Property tax 54,175 48,833 - - Sales tax 30,602 27,764 - - Franchise tax 21,996 21,001 - - Hotel occupancy tax 2,156 1,983 - - Beverage tax 574 419 - - Bingo tax 20 21 - - Investment Income 759 563 1,693 1,356 Miscellaneous 1,930 1,980 42 521 Total revenues 144,309 136,909 276,757 249,298 Expenses General government 31,260 30,477 - - Public safety 58,132 56,894 - - Public works 20,332 16,950 - - Parks and recreation 14,983 14,543 - - Interest on long -term debt 4,385 4,339 - - Electric - - 158,107 157,906 Water - - 25,871 24,023 Wastewater - - 24,307 22,176 Solid waste - - 26,767 23,844 Airport - - 2,100 2,436 Total expenses 129,092 123,203 237,152 230,385 Increase in net position before transfers 15,217 13,706 39,605 18,913 Transfers 1,141 877 (1,141) (877) Increase in net position 16,358 14,583 38,464 18,036 Net position at beginning of year, restated 129,997 154,662 531,329 533,214 Net position at end of year $146,355 $ 169,245 $ 569,793 $ 551,250 $ 284,702 $ 260,194 3,380 3,410 19,037 18,162 54,175 48,833 30,602 27,764 21,996 21,001 2,156 1,983 574 419 20 21 2,452 1,919 1,972 2,501 421,066 386,207 31,260 30,477 58,132 56,894 20,332 16,950 14,983 14,543 4,385 4,339 158,107 157,906 25,871 24,023 24,307 22,176 26,767 23,844 2,100 2,436 366,244 353,588 54,822 32,619 54,822 32,619 661,326 720,495 $ 716,148 $ 753,114 Governmental activities. Expenses for the governmental activities reflects an increase of $0.8 million in general government, an increase of $1.2 million in public safety, a $3.4 million increase in public works, and a $0.4 million increase in parks and recreation. The most significant governmental activities expense was in providing public safety, which incurred expenses of $58,132,146. The most significant portion of public safety is the cost of personnel, which totaled $46,769,434. These expenses were funded by revenues collected from a variety of sources, with the largest being from property taxes, which are $54,174,965 for the fiscal year ended September 30, 2015. Other significant governmental activities expense for the City includes general government, which incurred $31,260,126 in expenses, of which $14,453,996 represented personnel charges. The $2.2 million decrease in governmental program revenues are mainly due to a decrease of $0.2 million in charges for services, and the Capital grants and contributions decreased $2.1 million due primarily to a decrease due to the completion of the Public Safety Training Facility and the Denton Animal Shelter. Governmental general No CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 revenues included an increase of $5.3 million for Property tax and an increase of $2.8 million for sales tax due to an improving economy. Transfers reflect a $1.1 transfer in for the current year as compared to a transfer in of $0.9 million on the prior fiscal year. Business -type activities. Business -type activities increased the City's net position by $38,464,683, accounting for 70.2% of the growth in the entity -wide net position. Utility service revenues increased by $24.0 million. Electric charges for services provided a $17.6 million increase in revenues due to $4.8 million base rate increase, $6.2 million in higher ECA recovery, a new rate to recover $4.7 million in transmission costs, and $1.9 million in higher transmission of energy for other utilities. Water charges for services increased by $1.7 million due to 0.1% decrease in billed water volume and an average rate increase of 3.0 %. Wastewater charges provided $1.6 million of the increase due to a 0.1% decrease in billed wastewater volume a 6.0% rate increase for retail and commercial customers. Solid Waste charges for service provided $3.1 million. A 2.9% increase for the standard residential cart, a 3.6% rate increase for large residential cart, and a 4.0% rate increase for small residential cart provided an increase of $0.6 million. Increased construction activity resulted in additional dumpster fees of $1.7 million. In addition to the rate increases, landfill customers provided $0.8 million increase when the heavy rains cause customers to come the Denton landfill when other landfills in the area were inaccessible. Water and Wastewater collected $4.4 million and $2.1 million in impact fees, respectively. Capital contributions, which arise from new property development within the City, represent a major revenue source for the Airport, Water and Wastewater during the current fiscal year, producing $8.6 million in revenue. The Airport gas well revenues contributed an additional $0.6 million to the increase in net assets. Total business - type's operating costs, before depreciation, decreased by $0.2 million. Electric expenses reflect a reduction of $2.8 million for decreased costs related to purchase power costs of $7.1 million offset by increased personnel of $1.4 million and administrative cost of $2.9 million. Water expenses reflect $0.4 million in increased costs for personnel, repairs and maintenance costs of $0.8 million offset by lower administrative costs of $0.5 million. Wastewater expenses reflect a $1.9 million in increased costs for purchased power, personnel, maintenance and repairs, and administrative costs. Solid Waste operations expenses reflect a $0.5 million in increased costs for personnel. Airport operations expenses reflect a $0.2 million in decreased costs for repairs and maintenance and administrative costs. FINANCIAL ANALYSIS OF THE GOVERNMENT'S FUNDS As noted earlier, the City uses fund accounting to ensure and demonstrate compliance with finance- related legal requirements. Governmental funds. The focus of the City's governmental funds is to provide information on near -term inflows, outflows, and balances of resources available to spend. Such information is useful in assessing the City's financing requirements. In particular, unassigned fund balance may serve as a useful measure of a government's net resources available for spending at the end of the fiscal year. As of the end of the current fiscal year, the City's governmental funds reported a combined ending fund balance of $113.0 million, an increase of $22.4 million in comparison with the prior year. Approximately $27.3 million constitutes unassigned fund balance, which is available for spending at the government's discretion. The remainder of the fund balance has been classified to indicate that it is not available for new spending because it has already been classified as restricted ($75.4 million), committed ($6.3 million), and assigned ($3.9 million). The General Fund is the chief operating fund of the City. At September 30, 2015, the unassigned fund balance of the General Fund was $27.4 million, or 26.4% of budgeted general fund expenditures. The General Fund's ending fund balance increased by $1.5 million during the current fiscal year. The change in fund balance is due to expenditures, including other financing uses, of $94.4 million, and revenues, including other financing sources, of $95.9 million. Revenues were $6.0 million higher compared to the previous year primarily due to increased taxes of $7.1 million, licenses and permits of $0.8 million, offset by lower franchise fees of $0.9 million, fines and forfeitures of $0.8 million, and intergovernmental of $0.3 million. The net change in expenditures was $3.9 million higher as compared to the previous year. Public safety expenditures increased by $1.8 million, primarily due to increased personnel costs of $1.5 million, and transfer costs of $0.3 million. The M CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 increase of $1.3 million in general government is due to $0.7 million increase and personnel costs and $0.4 million increase due to operations and services costs. The increase of $0.4 public works is due to $0.1 million increase and personnel costs and $0.2 million increase due to maintenance and repairs costs. The increase of $0.3 parks and recreation is due to increased and personnel costs. Personnel costs, on a year over year comparison, for general government, public safety, public works, parks and recreation were $2.6 million higher due to an average merit increase of 3% for non -civil service employees, a pay adjustment for civil service employees to reach the market average plus 5% and continued step raises for the public safety civil service employees. All personnel costs were also higher due to increased benefit costs. At the end of the fiscal year, the capital projects fund has a total fund balance of $65.7 million, an increase of $18.6 million. The total fund balance is made up of $61.8 million in restricted funds and $3.9 million in assigned funds, both for capital construction and acquisition. In 2015, the City received $29.4 million of proceeds from the issuance of debt and $5.9 million of regional toll revenues from the Texas Department of Transportation, the University of North Texas, and Denton County for street construction while expending $23.2 million on construction and acquisition. In addition, the capital projects fund received $0.3 million in interest income, $0.6 million from the sale of fixed assets, approximately $0.5 million due primarily to donations, road damage assessment fees, developer's aid in construction, and $3.4 million of transfers from other funding sources. The debt service fund has a total fund balance of $4.8 million, all of which is restricted for the payment of debt service. As compared with the prior year results, the overall increase in the debt service fund balance of $0.1 million resulting from an increase of $0.1 million in tax revenue, offset by an increase of $1.3 million in principal and interest costs, while there was a $1.3 million increase of premiums on debt issuance and a reduction of $1.3 million in the refunding bonds issued and the payments to refunded bond escrow agent. Proprietary funds. The City's proprietary funds provide the same type of information found in the government - wide financial statements, but in more detail. Unrestricted net position at September 30, 2015 in proprietary funds are $50.5 million for Electric, $32.1 million for Water, $25.2 million for Wastewater, $1.0 million for Solid Waste, and $3.8 million for the Airport Fund. The results reflect an increase of the unrestricted net position in the Wastewater fund of $2.1 million and decreases in the Electric Fund of $11.8 million, the Water fund of $2.6 million, the Solid Waste fund of $2.6 million, and the Airport fund of $2.1 million. Other factors concerning the finances of these funds have already been addressed in the discussion of the City of Denton's business -type activities. GENERAL FUND BUDGETARY HIGHLIGHTS During fiscal year 2015, one formal amendments to adjust the City's of Denton Annual Program of Services was approved by Council for the General Fund. Council approved an additional $0.8 million to purchase equipment. GENERAL FUND BUDGET TO ACTUAL HIGHLIGHT For fiscal year 2015, General Fund actual expenditures (including transfers) on a budgetary basis were $102.4 million compared to the final budget of $103.6 million. The $1.2 million positive expenditure variance was primarily due to reduced costs of $0.8 million in personnel, and $0.4 million in operations and services. The lower Personnel costs were due to $1.1 million lower costs in public safety, $0.2 million in parks and recreation offset by $0.5 million higher than budgeted personnel costs in general government. In addition to personnel savings, general government, public safety and parks and recreation also saw a combined cost savings of $0.4 million in operations and services costs. Parks and recreation also had $0.1 million lower than budgeted maintenance costs. Actual revenues for the General Fund (including transfers and sale of capital asset) on a budgetary basis were $103.9 million compared to the final budget of $102.2 million. Of the $1.7 million revenue variance, approximately, $2.4 million is a positive revenue variance is due to greater that budgeted sales tax revenue, $0.1 F, CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 million positive variance for mixed beverage tax, and a negative $0.2 million variance due to lower than budgeted ad valorem tax. Licenses and permits experienced a positive variance of $0.5 million due to higher that budgeted revenues collected. Fines and forfeitures experienced $0.8 million in lower that budgeted revenues. Intergovernmental revenue variance of $0.3 million in lower than budgeted actual amounts. The City of Denton's General Fund unassigned fund balance at September 30, 2015 is $27.4 million, or 26.4% of budgeted expenditures. Below is a listing of the ending unassigned balances for the prior year, as well as the fiscal year 2015 unassigned fund balance. Unassigned balance % of total budgeted expenditures Policy level Actual Actual 9/30/2015 9/30/2014 $27,365,168 $25,176,737 26.4% 25.4% 15 -20% 15 -20% The largest revenue source of the General Fund's budget was the ad valorem tax. Denton's ad valorem tax rate is comprised of two components. The first is the operations and maintenance component that is used to calculate revenue for the City's General Fund operations. The second component is the debt portion that is used to calculate revenue to pay the City's general debt service obligations. The Denton Central Appraisal District's certified appraisal roll shows an increase of 11.72% compared to the prior year certified value, which showed an increase of 3.91%. The current property tax year included $187 million of new growth and construction that was added to the tax rolls in Tax year 2014 as compared to Tax year 2013. The fiscal year 2015 ad valorem tax rate remained the same as the prior year at $0.68975 per $100 of valuation. CAPITAL ASSET AND DEBT ADMINISTRATION Capital assets. At the end of fiscal year 2015, the City had $1,021,137,000 invested in a broad range of capital assets, including police and fire equipment, buildings, park facilities, roads, bridges, electrical infrastructure, and water and sewer lines (see Table 3 below). This amount represents a net increase (including additions and deductions) of $93,037,000 or 10.0% over the prior fiscal year. Table 3 Capital Assets at Year -end (Net of Accumulated Depreciation, in Thousands) 13 Governmental Activities Business -type Activities Totals 2015 2014 2015 2014 2015 2014 Land $ 15,867 $ 15,765 $ 23,675 $ 22,287 $ 39,542 $ 38,052 Landfill improvements - - 6,575 9,269 6,575 9,269 Building and improvements 36,790 38,331 12,797 9,937 49,587 48,268 Plant, machinery and equipment 34,272 29,149 170,220 156,254 204,492 185,403 Water rights - - 51,529 52,225 51,529 52,225 Infrastructure 91,765 92,222 314,404 270,832 406,169 363,054 Construction in progress 49,861 37,020 213,382 194,807 263,243 231,827 Total capital assets $ 228,555 $ 212,487 $ 792,582 $ 715,611 $1,021,137 $ 928,098 13 CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 This year's major asset additions included: Description Amount Lake Lewisville Water Treatment Plant $ 39,214,480 DME Engineering Operations Building 2,796,913 Eagle Drive drainage 2,306,303 Fire Department aerial truck 1,477,156 Forest Meadows paving 1,177,684 Technical Services Vblock datacenter 1,073,598 RDW -DW easement 972,589 Water meter installation project 742,169 Police training center equipment 738,019 Summer Oaks subdivision 680,374 Total $ 51,179,285 Additional information on the City's capital assets can be found in note IV. D. on pages 48 - 50 of this report. Debt. At year -end, the City had $667.9 million in bonds and notes outstanding as compared to $601.9 million at the end of the prior fiscal year, an increase of 11.0 %, as shown in Table 4. Table 4 Outstanding Debt at Year -end (in thousands) Governmental Activities 2015 2014 Business -type Activities 2015 2014 Totals 2015 2014 General obligation bonds $ 95,019 $ 78,316 $ 108,586 $ 79,189 $ 203,605 $ 157,505 Certificates of obligation 41,590 41,570 359,375 290,640 400,965 332,210 Revenue bonds - - 63,340 112,170 63,340 112,170 Total $ 136,609 $ 119,886 $ 531,301 $ 481,999 $ 667,910 $ 601,885 These amounts do not include net unamortized premiums/ (discounts) of $33,603,929 or net deferred gain/ (loss) on refunding of ($5,989,996). During the current fiscal year, the City issued debt two times, on June 16, 2015 and on September 15, 2015. The June debt issuance resulted in $93.0 million in certificates of obligation, of which $76.1 million is for enterprise operations, $16.9 million is for governmental activities, and $37.7 million in general obligation refunding and improvement bonds which refunded $12.1 million in general obligation bonds, $4.2 million in certificates of obligation and provided $21.8 million of new funding for various governmental capital improvements. The September debt issuance resulted in $33.9 million general obligation refunding bonds which refunded utility operation activities. Normal pay down in general obligation bonds was $13.4 million, $20.1 million in certificates of obligation and $11.6 million in utility revenue bonds. No utility revenue bonds have been issued since 2008 as management has elected to utilize certificates of obligation bonds as a result of lower interest rates. Moody's Investor's Service, Inc. has given the City's General Obligation Bonds and the Certificates of Obligation a rating of "Aa2." Standard and Poor's Corporation has given both the City's General Obligation Bonds and Certificates of Obligation an "AA +" rating. Fitch has given the City's General Obligation Bonds and the Certificates of Obligation a rating of "AA +." The City's Utility Revenue Bonds carry "Al" and "AA- " ratings by Moody's and Standard and Poor's, respectively. The City is permitted by Article XI, Section 5 of the State of Texas Constitution to levy taxes up to $2.50 per $100 of assessed valuation for general governmental services including the payment of principal and interest on general obligation long -term debt. The current ratio of tax - supported debt to certified assessed value of all taxable property is 2.25 %. 14 CITY OF DENTON, TEXAS MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) SEPTEMBER 30, 2015 Other long -term liabilities. The City maintains a self - insurance program for general liability, auto liability, public officials' liability, errors and omission liability, police professional liability, and workers' compensation. Private insurance companies cover claims for property loss over $50,000 per location/$250,000 per occurrence aggregate, for workers' compensation losses over $500,000 per occurrence, and for liability over $1,000,000 per occurrence. The City has a reserve for claims and judgments of $2.9 million outstanding at year -end compared with $2.5 million at the end of the prior fiscal year. Other obligations include pension liabilities, accrued vacation pay and sick leave. More detailed information about the City's long -term liabilities is presented in Note IV. G., on pages 53 - 57 of this report. ECONOMIC FACTORS AND NEXT YEAR'S BUDGETS AND RATES While growth for the Denton community is expected to be moderate in the short term, demands for city services is expected to remain strong over the long term. As a result, the fiscal year 2016 Budget includes an Ad valorem tax rate of $0.68975/$100 valuation and maintains the same rate in comparison to the prior year. While sales tax has increased over the prior year by 10.2 %, financial projections anticipate an increase of 3.0% in fiscal year 2016. General Fund expenditure enhancements for fiscal year 2016 include new positions in public safety, neighbor services, administrative and community services. Funding enhancements of $1.5 million will be budgeted for public safety, $1.1 million for neighbor services, and $0.9 million for administrative and community services in fiscal year 2016 in accordance with priorities established through the Strategic Plan. The fiscal year 2016 budget includes a cost recovery factor and base rate increase of 4.5% for all electric customers. The water budget includes an average rate increase of 6.3 % for residential customers and a 3.1 % increase for commercial customers. Wastewater includes an average rate increase of 2.7% for residential customers and a 1.2% increase for commercial customers. The solid waste residential standard cart rate will increased by 2.4 %. REQUESTS FOR INFORMATION This financial report is designed to provide a general overview of the City's finances for all those with an interest in the City's finances. Questions concerning any of the information provided in this report or requests for additional financial information should be addressed to the City of Denton Finance Department, 215 E. McKinney, Denton, Texas 76201. 15 16 CITY OF DENTON, TEXAS Exhibit I STATEMENT OF NET POSITION SEPTEMBER 30, 2015 Primary Government Governmental Business -type Activities Activities Total ASSETS: Current assets: Cash, cash equivalents and investments, at fair value $ 62,390,988 $ 129,592,301 $ 191,983,289 Receivables, net of allowances: Taxes 6,064,568 - 6,064,568 Accounts - 13,709,341 13,709,341 Unbilled utility service - 15,216,143 15,216,143 Interest 224,111 451,736 675,847 Other 3,043,505 593,605 3,637,110 Internal balances (13,616,644) 13,616,644 - Due from other governments 1,983,168 - 1,983,168 Inventory 5,994,402 - 5,994,402 Prepaid items - 56,054,841 56,054,841 Debt issuance costs - insurance 5,940 26,368 32,308 Total current assets 66,090,038 229,260,979 295,351,017 Noncurrent assets: Restricted assets: Cash, cash equivalents and investments, at fair value 145,565,506 165,352,926 310,918,432 Escrow deposits 171,841 50,000 221,841 Accrued interest 507,478 576,429 1,083,907 Other receivables 260,947 - 260,947 Debt issuance costs - insurance 14,586 108,293 122,879 Capital assets not being depreciated: Land 15,867,021 23,675,272 39,542,293 Construction in progress 49,861,039 213,381,830 263,242,869 Capital assets, net of accumulated depreciation: Buildings 36,789,727 12,796,838 49,586,565 Plant, machinery and equipment 34,271,782 170,219,951 204,491,733 Infrastructure 91,765,131 314,404,396 406,169,527 Landfill improvements - 6,575,216 6,575,216 Water rights - 51,528,585 51,528,585 Total noncurrent assets 375,075,058 958,669,736 1,333,744,794 Total assets 441,165,096 1,187,930,715 1,629,095,811 DEFERRED OUTFLOWS OF RESOURCES Deferred loss on refundings 2,037,157 3,952,809 5,989,966 Deferred pension actuarial losses 1,989,650 1,221,868 3,211,518 Deferred pension contributions 7,700,210 3,986,659 11,686,869 Total deferred outflows of resources 11,727,017 9,161,336 20,888,353 LIABILITIES: Current liabilities: Accounts payable 8,974,226 9,666,950 18,641,176 Retainage payable - 522,618 522,618 Deposits - 4,824,906 4,824,906 Accrued interest 6,735 23,858 30,593 Due to other governments 504 - 504 Noncurrent liabilities due within one year 22,472,135 41,419,954 63,892,089 Other liabilities 384,594 - 384,594 Unearned revenue 77,084,853 - 77,084,853 Payable from restricted assets: Accounts payable 1,154,125 8,582,721 9,736,846 Retainage payable 489,139 2,394,145 2,883,284 Accrued interest 746,295 3,967,968 4,714,263 Total current liabilities 111,312,606 71,403,120 182,715,726 Noncurrent liabilities: Noncurrent liabilities due in more than one year 195,142,834 555,839,909 750,982,743 Total noncurrent liabilities 195,142,834 555,839,909 750,982,743 Total liabilities 306,455,440 627,243,029 933,698,469 DEFERRED INFLOWS OF RESOURCES Deferred pension excess earnings 81,895 55,781 137,676 Total deferred inflows of resources 81,895 55,781 137,676 NET POSITION: Net investment in capital assets 141,914,877 421,894,337 563,809,214 Restricted for: Debt service 4,260,793 17,808,945 22,069,738 Parks and recreation 5,588,260 - 5,588,260 Capital acquisition - 7,547,513 7,547,513 Other grants and purposes 3,366,368 - 3,366,368 Unrestricted (8,775,520) 122,542,446 113,766,926 Total net position $ 146.354.778 $ 569.793.241 $ 716.148.019 The notes to the basic financial statements are an integral part of this statement. 17 CITY OF DENTON, TEXAS STATEMENT OF ACTIVITIES FOR THE YEAR ENDED SEPTEMBER 30, 2015 18 Program Revenues Operating Capital Charges for Grants and Grants and Functions /Programs Expenses Services Contributions Contributions Primary government: Governmental activities: General government $ 31,260,126 $ 5,364,405 $ 2,011,470 $ - Public safety 58,132,146 7,276,024 1,319,251 424,427 Public works 20,331,934 707,604 - 10,018,793 Parks and recreation 14,982,742 4,926,465 49,398 - Interest expense 4,384,973 - - - Total governmental activities 129,091,921 18,274,498 3,380,119 10,443,220 Business -type activities: Electric system 158,106,661 167,696,288 - - Water system 25,870,489 37,572,331 - 2,736,603 Wastewater system 24,307,305 30,790,885 - 5,826,767 Solid waste 26,766,890 29,091,216 - - Airport 2,100,281 1,277,402 - 30,329 Total business -type activities 237,151,626 266,428,122 - 8,593,699 Total primary government $ 366,243,547 $ 284,702,620 $ 3,380,119 $ 19,036,919 General revenues: Taxes: Property tax Sales tax Franchise fees Hotel occupancy tax Beverage tax Bingo tax Investment income Gain on sale of capital assets Miscellaneous Transfers Total general revenues and transfers Change in net position Net position at beginning of year as previously reported Prior period adjustment (Note LF.) Net assets at beginning of year - as restated Net position at end of year The notes to the basic financial statements are an integral part of this statement. 18 Exhibit 11 Net (Expense) Revenue and Changes in Net Position Primary Government Governmental Business -type Activities Activities Total $ (23,884,251) $ - $ (23,884,251) (49,112,444) - (49,112,444) (9,605,537) - (9,605,537) (10,006,879) - (10,006,879) (4,384,973) - (4,384,973) (96,994,084) - (96,994,084) 759,334 - 9,589,627 9,589,627 - 14,438,445 14,438,445 - 12,310,347 12,310,347 - 2,324,326 2,324,326 - (792,550) (792,550) - 37,870,195 37,870,195 (96,994,084) 37,870,195 (59,123,889) 54,174,965 - 54,174,965 30,601,965 - 30,601,965 21,996,031 - 21,996,031 2,156,294 - 2,156,294 573,758 - 573,758 20,380 - 20,380 759,334 1,692,971 2,452,305 707,966 42,455 750,421 1,220,060 - 1,220,060 1,140,938 (1,140,938) - 113,351,691 594,488 113,946,179 16,357,607 38,464,683 54,822,290 169,244,490 551,250,426 720,494,916 (39,247,319) (19,921,868) (59,169,187) 129,997,171 531,328,558 661,325,729 $ 146,354,778 $ 569,793,241 $ 716,148,019 I CITY OF DENTON, TEXAS BALANCESHEET GOVERNMENTAL FUNDS AS OF SEPTEMBER 30, 2015 ASSETS: Cash, cash equivalents and investments, at fair value Receivables, net of allowances for uncollectibles: Taxes Accrued interest Other Interfund receivables Due from other governments Total assets LIABILITIES: Accounts payable Retainage payable Interfund payables Due to other governments Other liabilities Unearned revenues Total liabilities General Other Capital Governmental Debt Service Projects Funds Exhibit HI Total Governmental Funds $ 24,826,345 $ 4,758,901 $ 143,080,422 $ 15,917,978 $ 188,583,646 5,826,236 238,332 - - 6,064,568 93,227 16,590 498,788 55,489 664,094 2,764,342 - - 479,966 3,244,308 316,069 - - 105,434 421,503 423,062 - 886,884 673,222 1,983,168 $ 34,249,281 $ 5,013,823 $ 144,466,094 $ 17,232,089 $ 200,961,287 4,699,356 - 1,222,966 1,806,673 7,728,995 - - 489,139 - 489,139 - - - 105,434 105,434 504 - - - 504 384,594 - - - 384,594 - - 77,031,312 53,541 77,084,853 5,084,454 - 78,743,417 1,965,648 85,793,519 DEFERRED INFLOWS OF RESOURCES: Unavailable revenue - property taxes 478,879 221,943 - - 700,822 Unavailable revenue - general services 897,718 - - - 897,718 Unavailable revenue - intergovernmental 423,062 - - 151,843 574,905 Total deferred inflows of resources 1,799,659 221,943 - 151,843 2,173,445 FUND BALANCES: Restricted for: Debt service Parks and recreation Streets and drainage projects Other capital projects Other grants and purposes Committed to: Streets Parks and recreation Other purposes Assigned to: Streets and drainage projects Capital projects Other purposes Unassigned Total fund balances Total liabilities, deferred inflows of resources and fund balances 4,791,880 - - 4,791,880 - 8,700,399 5,588,260 14,288,659 - 42,537,941 - 42,537,941 - 10,603,695 - 10,603,695 - 3,218,466 3,218,466 1,388,223 1,388,223 513,484 513,484 4,430,392 4,430,392 2,214,613 - 2,214,613 1,666,029 - 1,666,029 - - - 49,630 49,630 27,365,168 - - (73,857) 27,291,311 27,365,168 4,791,880 65,722,677 15,114,598 112,994,323 $ 34,249,281 $ 5,013,823 $ 144,466,094 $ 17,232,089 $ 200,961,287 The notes to the basic financial statements are an integral part of this statement. 20 CITY OF DENTON, TEXAS RECONCILIATION OF THE BALANCE SHEET OF GOVERNMENTAL FUNDS TO THE STATEMENT OF NET POSITION AS OF SEPTEMBER 30, 2015 Total fund balances - governmental funds (Exhibit IH) Amounts reported for governmental activities in the statement of net position are different because: Capital assets used in governmental activities are not financial resources and therefore are not reported as assets in governmental funds. Includes capital assets of internal service funds. Certain receivables will be collected next year but are not available soon enough to pay for the current period's expenditures and therefore are reported as unearned revenues in the funds. Deferred outflows of resources are not reported in the governmental funds. Includes deferred outflows of internal service funds: Deferred loss on refundings Deferred pension actuarial losses Deferred pension contributions An internal charge to business -type activities is not recorded at the fund level. Several internal service funds are used by the City's management to charge the costs of certain activities, such as insurance and fleet management, to individual funds. The assets, liabilities, deferred outflows, and deferred inflows of the internal service funds are included with governmental activities. Internal service fund balances not included in other reconciling items listed above or below: Current assets Liabilities $ 2,037,157 1,989,650 7,700,210 $ 25,666,730 (11,122,335) Long -term balances, including bonds payable, are not due and payable in the current period and therefore are not reported as liabilities in the funds. Includes balances of internal service funds. Long -term liabilities and related balances at year -end consist of: General obligation bonds payable $ (95,019,058) Certificates of obligation payable (41,590,000) Bond (premiums) /discounts (6,039,853) Debt issuance costs 20,526 Accrued interest on the bonds (753,030) Capital leases payable Municipal pension obligation Other post employment benefits liability Compensated absences Deferred inflows of resources are not reported in the governmental funds. Includes deferred outflows of internal service funds: Deferred pension excess earnings Total net position of governmental activities (Exhibit I) The notes to the basic financial statements are an integral part of this exhibit. 21 (2,079,226) (53,272,590) (3,733,735) (11,157,528) Exhibit IV 112,994,323 228,554,700 2,173,445 11,727,017 (9,932,713) 14,544,395 (213,624,494) (81,895) $ 146,354,778 CITY OF DENTON, TEXAS Exhibit V STATEMENT OF REVENUES, EXPENDITURES, AND CHANGES IN FUND BALANCES GOVERNMENTAL FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Taxes Licenses and permits Franchise fees Fines and forfeitures Fees for services Investment revenue Intergovernmental Miscellaneous Total revenues EXPENDITURES: Current: General government Public safety Public works Parks and recreation Capital outlay Debt service: Principal retirement Advance refunding escrow Bond issuance costs Interest and other charges Total expenditures Excess (deficiency) of revenues over (under) expenditures OTHER FINANCING SOURCES (USES): Refunding bonds issued Payment to refunded bond escrow agent Issuance of long -term debt Premium on debt issuance Sale of capital assets Transfers in Transfers out Total other financing sources (uses) Net change in fund balances Other Total General Capital Governmental Governmental Fund Debt Service Projects Funds Funds $ 68,844,155 $ 16,223,099 $ - $ 2,515,684 $ 87,582,938 2,782,395 - - - 2,782,395 12,969,628 - - 9,026,403 21,996,031 3,721,677 - - 2,783,498 6,505,175 6,039,221 - - 3,352,039 9,391,260 221,867 87,941 371,995 77,531 759,334 1,051,630 - 5,939,638 3,245,421 10,236,689 141,090 - 523,943 722,094 1,387,127 95,771,663 16,311,040 6,835,576 21,722,670 140,640,949 24,694,516 - 330,324 4,252,435 29,277,275 52,739,309 - 219,975 3,018,890 55,978,174 3,306,507 - 326,121 8,806,503 12,439,131 11,209,486 - 35,420 2,032,610 13,277,516 572,876 - 22,246,954 892,570 23,712,400 - 11,866,784 - 52,199 11,918,983 - 120,519 - - 120,519 - 62,675 118,734 - 181,409 - 4,641,230 - 6,298 4,647,528 92,522,694 16,691,208 23,277,528 19,061,505 151,552,935 3,248,969 (380,168) (16,441,952) 2,661,165 (10,911,986) - 14,290,000 - - 14,290,000 - (15,604,758) - - (15,604,758) - - 29,240,000 - 29,240,000 - 1,377,165 1,837,749 - 3,214,914 117,763 - 597,922 - 715,685 250 382,800 3,384,361 790,413 4,557,824 (1,840,096) - - (1,231,498) (3,071,594) (1,722,083) 445,207 35,060,032 (441,085) 33,342,071 1,526,886 65,039 18,618,080 2,220,080 22,430,085 Fund balance at beginning of year 25,838,282 4,726,841 47,104,597 12,894,518 90,564,238 Fund balances at end of year $ 27,365,168 $ 4,791,880 $ 65,722,677 $ 15,114,598 $ 112,994,323 The notes to the basic financial statements are an integral part of this statement. 22 CITY OF DENTON, TEXAS Exhibit VI RECONCILIATION OF THE STATEMENT OF REVENUES, EXPENDITURES, AND CHANGES IN FUND BALANCES OF GOVERNMENTAL FUNDS TO THE STATEMENT OF ACTIVITIES FOR THE YEAR ENDED SEPTEMBER 30, 2015 Net change in fund balances - total governmental funds (Exhibit V) $ 22,430,085 Amounts reported for governmental activities in the statement of activities are different because: Governmental funds report capital outlays as expenditures. However, in the statement of activities the cost of those assets is allocated over their estimated useful lives and reported as depreciation expense. This is the amount by which capital outlay ($23,712,400) is different from depreciation and retirement of assets ($13,279,875 = $15,365,007 total governmental minus $2,085,132 internal service portion) in the current period. 10,432,525 Revenues in the statement of activities that do not provide current financial resources are not reported as revenues in the funds. Such amounts are recorded in the funds when considered available. (2,146,311) The net effect of various miscellaneous transactions involving capital assets (i.e., sales, trade -ins and donations) is to increase net position. 4,186,092 Bond proceeds provide current financial resources to governmental funds, but issuing debt increases long -term liabilities in the statement of net position. Repayment of bond principal is an expenditure in the governmental funds, but the repayment reduces long -term liabilities in the statement of net position. This is the amount by which payments exceeded proceeds. (16,996,017) Fund -level financials report costs related to bonds as expenditures; however, these are deferred and amortized on the government -wide financials. (1,776,508) Certain expenses reported in the statement of activities do not require the use of current financial resources and therefore are not reported as expenditures in governmental funds. 186,037 Internal service funds are used by management to charge the costs of certain activities, such as insurance and technology services, to individual funds. A portion of the net revenue (expense) of certain internal service funds is reported with governmental activities. The amount reported with business -type activities is $50,968. 41,704 Change in net position of governmental activities (Exhibit Il) $ 16,357,607 The notes to the basic financial statements are an integral part of this statement. 23 24 CITY OF DENTON, TEXAS STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCE - BUDGET TO ACTUAL GENERAL FUND FOR THE YEAR ENDED SEPTEMBER 30, 2015 Exhibit VII EXPENDITURES: Variance with Current: Adjustments - Actual on a Final Budget - General government Budgeted Amounts Actual Budgetary Budgetary Positive (169,120) Original Final Amounts Basis Basis (Negative) REVENUES: Public works 3,221,417 3,359,529 3,306,507 2,656 3,309,163 Taxes $ 66,549,857 $ 66,549,857 $ 68,844,155 $ - $ 68,844,155 $ 2,294,298 Licenses and permits 2,308,943 2,308,943 2,782,395 - 2,782,395 473,452 Franchise fees 13,205,315 13,205,315 12,969,628 - 12,969,628 (235,687) Fines and forfeitures 4,558,188 4,558,188 3,721,677 - 3,721,677 (836,511) Fees for services 6,325,337 6,325,337 6,039,221 264,083 6,303,304 (22,033) Investment revenue 196,541 196,541 221,867 - 221,867 25,326 Intergovernmental 988,577 988,577 1,051,630 - 1,051,630 63,053 Miscellaneous 160,254 160,254 141,090 - 141,090 (19,164) Total revenues 94,293,012 94,293,012 95,771,663 264,083 96,035,746 1,742,734 EXPENDITURES: (USES): Current: Sale of capital assets 141,000 General government 32,887,941 32,411,748 24,694,516 7,886,352 32,580,868 (169,120) Public safety 53,931,222 53,919,162 52,739,309 28,030 52,767,339 1,151,823 Public works 3,221,417 3,359,529 3,306,507 2,656 3,309,163 50,366 Parks and recreation 11,788,704 11,756,304 11,209,486 86,712 11,296,198 460,106 Capital outlay 897,544 564,975 572,876 - 572,876 (7,901) Total expenditures 102,726,828 102,011,718 92,522,694 8,003,750 100,526,444 1,485,274 Excess (deficiency) of revenues over (under) expenditures (8,433,816) (7,718,706) 3,248,969 (7,739,667) (4,490,698) 3,228,008 OTHER FINANCING SOURCES (USES): Sale of capital assets 141,000 141,000 117,763 - 117,763 (23,237) Transfer in 7,751,083 7,751,083 250 7,739,667 7,739,917 (11,166) Transfers out (119,812) (1,600,438) (1,840,096) - (1,840,096) (239,658) Total other financing sources (uses) 7,772,271 6,291,645 (1,722,083) 7,739,667 6,017,584 (274,061) Excess (deficiency) of revenues and other sources over (under) expenditures and other uses (661,545) (1,427,061) 1,526,886 - 1,526,886 2,953,947 Fund balances at beginning of year 25,838,282 25,838,282 25,838,282 - 25,838,282 - Fund balance at end of year $ 25,176,737 $ 24,411,221 $ 27,365,168 $ - $ 27,365,168 $ 2,953,947 Adjustments - Budgetary Basis are expenditures allocated to and reimbursed by other funds. These expenditures are recorded in the other funds' financials. The notes to the basic financial statements are an integral part of this statement. 25 CITY OF DENTON, TEXAS STATEMENT OF NET POSITION PROPRIETARY FUNDS AS OF SEPTEMBER 30, 2015 26 Business -type Activities - Enterprise Funds Electric Water Wastewater Solid System System System Waste ASSETS: Current assets: Cash, cash equivalents and investments, at fair value $ 59,233,592 $ 33,956,232 $ 26,590,977 $ 5,714,548 Receivables, net of allowances: Accounts 8,683,555 2,227,228 1,462,204 1,309,547 Unbilled utility service 9,631,641 2,509,573 1,576,294 1,498,635 Accrued interest 206,492 118,347 92,696 19,919 Other 480,860 1,052 - - Interfund receivables 3,086,729 467,242 129,960 - Merchandise inventory - - - - Prepaid items 56,054,841 - - - Unamortized debt issuance costs - insurance 10,774 12,424 2,655 515 Total current assets 137,388,484 39,292,098 29,854,786 8,543,164 Noncurrent assets: Restricted assets: Cash, cash equivalents and investments, at fair value 82,221,202 34,000,175 25,840,907 22,663,505 Escrow deposit - 50,000 - - Accrued interest 286,630 118,527 90,079 79,007 Total restricted assets 82,507,832 34,168,702 25,930,986 22,742,512 Unamortized debt issuance costs - insurance 41,224 62,267 2,712 2,090 Capital assets, net of accumulated depreciation 301,143,625 247,087,890 185,928,053 43,795,823 Total noncurrent assets 383,692,681 281,318,859 211,861,751 66,540,425 Total assets 521,081,165 320,610,957 241,716,537 75,083,589 DEFERRED OUTFLOWS OF RESOURCES: Deferred charges on refunding 1,268,275 1,945,851 545,544 156,246 Deferred pension actuarial losses 492,031 262,003 202,481 249,430 Deferred pension contributions 1,605,377 854,852 660,647 813,831 Total deferred outflows of resources 3,365,683 3,062,706 1,408,672 1,219,507 LIABILITIES: Current liabilities: Accounts payable 6,686,435 1,320,148 628,066 974,513 Retainage payable - 504,940 - - Claims payable - - - - Compensated absences payable 1,043,491 480,959 348,399 411,025 Leases payable - - - - Deposits 4,311,030 267,194 40,563 206,119 Accrued interest - - - - Interfund payables - - - - Payable from restricted assets: Accounts payable 6,574,768 21,360 1,166,364 814,480 Retainage payable 659,952 1,391,594 320,811 - Accrued interest 2,391,387 926,338 375,076 275,167 Revenue and certificate and general obligation bonds 17,021,586 10,011,166 5,702,799 6,052,193 Total current liabilities paid from restricted assets 26,647,693 12,350,458 7,565,050 7,141,840 Total current liabilities 38,688,649 14,923,699 8,582,078 8,733,497 26 Exhibit VIII 26,807 Governmental - Activities - Total Internal Enterprise Service Airport Funds Funds $ 4,096,952 $ 129,592,301 $ 19,372,848 26,807 13,709,341 - - 15,216,143 - 14,282 451,736 67,495 111,693 593,605 60,144 - 3,683,931 - - - 5,994,402 - 56,054,841 - - 26,368 - 4,249,734 219,328,266 25,494,889 627,137 165,352,926 - - 50,000 171,841 2,186 576,429 - 629,323 165,979,355 171,841 - 108,293 - 14,626,697 792,582,088 10,394,615 15,256,020 958,669,736 10,566,456 19,505,754 1,177,998,002 36,061,345 36,893 3,952,809 53,027 15,923 1,221,868 277,445 51,952 3,986,659 905,238 104,768 9,161,336 1,235,710 57,788 9,666,950 2,399,356 17,678 522,618 - - - 2,233,039 23,330 2,307,204 506,309 - - 753,091 - 4,824,906 - 23,858 23,858 6,735 - - 4,000,000 5,749 8,582,721 - 21,788 2,394,145 - - 3,967,968 - 325,006 39,112,750 263,935 352,543 54,057,584 263,935 475,197 71,403,120 10,162,465 (continued) 27 CITY OF DENTON, TEXAS STATEMENT OF NET POSITION PROPRIETARY FUNDS AS OF SEPTEMBER 30, 2015 28 Business -type Activities - Enterprise Funds Electric Water Wastewater Solid System System System Waste Noncurrent liabilities: Leases payable - Payable from restricted assets: General obligation bonds payable 41,202,543 45,134,261 18,591,275 3,738,247 Certificates of obligation 266,105,870 27,001,288 28,685,844 31,476,513 Revenue bonds payable, net of premium/discount 18,912,744 31,362,385 2,871,925 - Compensated absences payable 210,368 55,754 60,900 142,389 Claims payable - - - - Municipal pension obligation 10,807,350 5,754,839 4,447,456 5,478,685 Other post employment benefits 550,224 573,868 377,942 436,823 Landfill closure /postclosure costs - - - 6,813,786 Total noncurrent liabilities 337,789,099 109,882,395 55,035,342 48,086,443 Total liabilities 376,477,748 124,806,094 63,617,420 56,819,940 DEFERRED INFLOWS OF RESOURCES: Deferred pension excess earnings 22,462 11,961 9,244 11,387 Total deferred inflows of resources 22,462 11,961 9,244 11,387 NET POSITION: Net investment in capital assets 92,025,112 152,488,820 148,582,193 18,499,708 Restricted for debt service 5,420,565 9,679,393 2,708,987 - Restricted for capital acquisition - 4,587,529 2,959,984 - Unrestricted 50,500,961 32,099,866 25,247,381 972,061 Total net position $ 147,946,638 $ 198,855,608 $ 179,498,545 $ 19,471,769 Adjustment to reflect inclusion of internal service fund activities related to enterprise funds. Net position of business -type activities (Exhibit I) The notes to the basic financial statements are an integral part of this statement. 28 Exhibit VIII (concluded) 29 Governmental Activities - Total Internal Enterprise Service Airport Funds Funds 1,215,599 1,278,842 109,945,168 1,033,365 3,390,561 356,660,076 - - 53,147,054 - 1,254 470,665 75,703 - - 2,489,940 349,741 26,838,071 6,094,032 26,232 1,965,089 418,063 - 6,813,786 - 5,046,630 555,839,909 11,326,702 5,521,827 627,243,029 21,489,167 727 55,781 12,665 727 55,781 12,665 10,298,504 421,894,337 7,181,652 - 17,808,945 - - 7,547,513 - 3,789,464 112,609,733 8,613,571 $ 14,087,968 $ 559,860,528 $ 15,795,223 (concluded) 29 CITY OF DENTON, TEXAS STATEMENT OF REVENUES, EXPENSES AND CHANGES IN FUND NET POSITION PROPRIETARY FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 Business -type Activities - Enterprise Funds 30 Electric Water Wastewater System System System OPERATING REVENUES: Utility services $ 165,584,882 $ 32,190,917 $ 27,331,166 Charges for goods and services - - - Other fees 2,111,406 952,118 1,412,994 Miscellaneous - - - Total operating revenues 167,696,288 33,143,035 28,744,160 OPERATING EXPENSES: Operating expenses before depreciation 141,404,808 16,424,335 17,302,502 Depreciation 8,595,585 6,269,984 6,099,265 Total operating expenses 150,000,393 22,694,319 23,401,767 Operating income (loss) 17,695,895 10,448,716 5,342,393 NON - OPERATING REVENUES (EXPENSES): Investment revenue 805,902 408,615 298,303 Interest expense and fiscal charges (8,126,804) (3,356,986) (946,531) Impact fee revenue - 4,429,296 2,046,725 Gain (loss) on disposal of capital assets (231,309) (42,178) 58,300 Gas well revenues - - - Other non - operating revenues (expenses) - 171,540 30,651 Total non - operating revenues (expenses) (7,552,211) 1,610,287 1,487,448 Income (loss) before contributions and transfers 10,143,684 12,059,003 6,829,841 CONTRIBUTIONS AND TRANSFERS: Capital contributions - 2,736,603 5,826,767 Transfers in 30,000 51,000 262,825 Transfers out (389,953) (123,922) (986,222) Total contributions and transfers (359,953) 2,663,681 5,103,370 Change in net position 9,783,731 14,722,684 11,933,211 Net position at beginning of year - as previously stated 146,369,635 188,307,469 170,789,022 Prior period adjustment (Note LE) (8,206,728) (4,174,545) (3,223,688) Net position at beginning of year 138,162,907 184,132,924 167,565,334 Total net position at end of year $ 147,946,638 $ 198,855,608 $ 179,498,545 Change in fund net position of proprietary funds Adjustment to reflect inclusion of internal service fund activities related to enterprise funds. Change in net position of business -type activities (Exhibit II) The notes to the basic financial statements are an integral part of this statement. 30 Exhibit IX 31 Governmental Activities - Total Internal Solid Enterprise Service Waste Airport Funds Funds $ 28,705,401 $ 634,885 $ 254,447,251 $ - - - - 60,899,4.58 385,815 60,668 4,923,001 - - - - 2,413,632 29,091,216 695,553 259,370,252 63,313,090 19,445,473 1,417,358 195,994,476 60,787,252 6,197,190 610,007 27,772,031 2,085,132 25,642,663 2,027,365 223,766,507 62,872,384 3,448,553 (1,331,812) 35,603,745 440,706 141,013 39,138 1,692,971 111,386 (1,134,578) (73,406) (13,638,305) (106,572) - - 6,476,021 - 257,642 - 42,455 (41,992) - 581,849 581,849 - - 27 202,218 - (735,923) 547,608 (4,642,791) (37,178) 2,712,630 (784,204) 30,960,954 403,528 - 30,329 8,593,699 34,436 470,751 - 814,576 35,780 (405,417) (50,000) (1,955,514) (381,072) 65,334 (19,671) 7,452,761 (310,856) 2,777,964 (803,875) 38,413,715 92,672 20,728,524 15,174,031 541,368,681 20,227,051 (4,034,719) (282,188) (19,921,868) (4,524,500) 16,693,805 14,891,843 521,446,813 15,702,551 $ 19,471,769 $ 14,087,968 $ 559,860,528 $ 15,795,223 38,413,715 50,968 $ 38,464,683 31 CITY OF DENTON, TEXAS STATEMENT OF CASH FLOWS PROPRIETARY FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 CASH FLOWS FROM OPERATING ACTIVITIES: Cash received from customers Cash paid to employees for services Cash paid to suppliers Net cash provided (used) by operating activities CASH FLOWS FROM NONCAPITAL FINANCING ACTIVITIES: Transfers out Transfers in Proceeds from issuance of non - capital debt Principal payments on non - capital debt Interest and fiscal charges on non - capital debt Net cash used by noncapital financing activities: CASH FLOWS FROM CAPITAL AND RELATED FINANCING ACTIVITIES: Proceeds from issuance of debt Principal payments on capital debt Interest and fiscal charges Principal payments under capital lease obligation Proceeds from gas wells Proceeds from impact fees Proceeds from sale of capital assets Acquisition and construction of capital assets Net cash used by capital financing activities CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from sale and maturities of investment securities Purchase of investment securities Interest received on investments Net cash provided (used) by investing activities Net increase (decrease) in cash and cash equivalents Cash and cash equivalents at beginning of year Cash and cash equivalents at end of year Investments, at fair value (Note IV.A.) Cash, cash equivalents and investments, at fair value RECONCILIATION OF OPERATING INCOME (LOSS) TO NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES: Operating income (loss) Adjustments: Depreciation expense Decrease (Increase) in receivables Decrease (Increase) in interfund receivables Increase in inventories Decrease in prepaid items Decrease in escrow deposits Increase (Decrease) in accounts payable Decrease in unearned revenue Increase (Decrease) in compensated absences payable Decrease in net municipal pension obligations, as restated Increase in other post employment benefits Increase in clo sure/postclo sure liability Increase in interfund payables Total adjustments Net cash provided (used) by operating activities NONCASH CAPITAL, INVESTING AND FINANCING ACTIVITIES: Increase in fair value of investments Increase (Decrease) in equity due to non -cash transfers Capital asset contributions Increase in capital lease obligations The notes to the basic financial statements are an integral part of this statement. 32 Business -type Activities - Enterprise Funds Electric Water Wastewater System System System $ 163,057,379 $ 31,495,185 $ 27,999,288 (12,794,758) (9,296,615) (7,239,519) (124,564,903) (7,469,197) (10,523,234) 25,697,718 14,729,373 10,236,535 (389,953) (106,422) (515,471) 30,000 51,000 27,825 3,435,733 - - (3,445,000) - - (2,506,034) (2,875,254) (55,422) (487,646) 81,298,981 19,171,472 13,561,256 (24,530,000) (26,115,000) (10,275,000) (7,549,299) (4,600,178) (1,516,271) - 4,429,296 2,046,725 29,239 147,363 111,981 (66,376,278) (8,586,099) (11,237,813) (17,127,357) (15,553,146) (7,309,122) 51,067,563 30,221,159 18,953,127 (57,028,114) (29,900,042) (21,462,680) 712,747 374,440 262,782 (5,247,804) 695,557 (2,246,771) 447,303 (183,638) 192,996 14,595,964 7,417,734 5,383,236 15,043,267 7,234,096 5,576,232 126,411,527 60,722,311 46,855,652 $ 141,454,794 $ 67,956,407 $ 52,431,884 $ 17,695,895 $ 10,448,716 $ 5,342,393 8,595,585 6,269,984 6,099,265 (2,957,040) (1,683,380) (747,636) (84,451) 35,530 2,764 1,304,082 - - 2,817,162 (285,316) (379,446) (1,597,418) - - 190,428 52,715 6,192 (388,599) (206,926) (159,916) 122,074 98,050 72,919 8,001,823 4,280,657 4,894,142 $ 25,697,718 $ 14,729,373 $ 10,236,535 85,221 39,406 31,733 - (17,500) (235,751) - 2,736,603 5,826,767 Exhibit X 33 Governmental Activities Total Internal Solid Enterprise Service Waste Airport Funds Funds $ 28,405,382 $ 688,761 $ 251,645,995 $ 63,371,335 (9,219,139) (585,263) (39,135,294) (10,324,954) (9,167,308) (947,342) (152,671,984) (49,553,339) 10,018,935 (843,844) 59,838,717 3,493,042 (170,417) (50,000) (1,232,263) (381,072) - - 108,825 35,780 - - 3,435,733 - - - (3,445,000) - (2,506,034) (170,417) (50,000) (3,638,739) (345,292) 11,626,227 441,864 126,099,800 - (6,703,220) (699,677) (68,322,897) (325,318) (1,363,576) (135,205) (15,164,529) (108,993) - - - (764,479) - 664,430 664,430 - - - 6,476,021 - 258,975 - 547,558 38,886 (8,146,457) (2,123,104) (96,469,751) (1,796,396) (4,328,051) (1,851,692) (46,169,368) (2,956,300) 4,614,833 5,012,984 109,869,666 7,633,018 (9,689,209) (2,613,432) (120,693,477) (7,944,903) 109,445 44,656 1,504,070 103,635 (4,964,931) 2,444,208 (9,319,741) (208,250) 555,536 (301,328) 710,869 (16,800) 2,462,915 803,720 30,663,569 2,087,308 3,018,451 502,392 31,374,438 2,070,508 25,359,602 4,221,697 263,570,789 17,302,340 _L2&378,053 $ 4,724,089 $ 294,945,227 $ 19,372,848 $ 3,448,553 $ (1,331,812) $ 35,603,745 $ 440,706 6,197,190 610,007 27,772,031 2,085,132 (742,102) (6,792) (6,136,950) 41,244 - - (46,157) - - - - (649,192) - - 1,304,082 17,700 - - - 17,000 824,483 (106,326) 2,870,557 1,513,863 - - (1,597,418) - 12,196 (1,054) 260,477 27,488 (196,995) (12,575) (965,011) (655,567) 81,416 4,708 379,167 514,668 394,194 - 394,194 - - - - 140,000 6,570,382 487,968 24,234,972 3,052,336 $ 10,018,935 $ (843,844) $ 59,838,717 $ 3,493,042 18,962 1,597 176,919 11,422 235,751 - (17,500) - - 30,329 8,593,699 34,436 - - - 1,793,040 33 CITY OF DENTON, TEXAS STATEMENT OF ASSETS AND LIABILITIES AGENCY FUNDS AS OF SEPTEMBER 30, 2015 Exhibit XI Total Agency Funds ASSETS: Cash, cash equivalents and investments, at fair value $ 2,141,234 Accrued interest 804 Other assets 76,978 Total assets $ 2,219,016 LIABILITIES: Accounts payable 2,219,016 Total liabilities $ 2,219,016 The notes to the basic financial statements are an integral part of this statement. 34 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS SEPTEMBER 30, 2015 I. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The City of Denton is a municipal corporation governed by an elected seven - member council consisting of a mayor elected at large and six councilpersons, four representing specific geographical districts and two elected at large. The City receives funding from state and federal government sources and must comply with the requirements of these funding source entities. However, the City is not included in any other governmental "reporting entity," as defined in pronouncements by the Governmental Accounting Standards Board (GASB), as council members are elected by the public and have decision - making authority, the authority to levy taxes, the power to designate management, the ability to significantly influence operations, and primary accountability for fiscal matters. The financial statements of the City have been prepared to conform to accounting principles generally accepted (GAAP) in the United States of America as applicable to state and local governments. Generally accepted accounting principles for local governments include principles prescribed by GASB, the accepted standard- setting body for establishing governmental accounting and financial reporting principles. The following is a summary of the more significant policies. A. Reporting entity An elected seven - member council consisting of a mayor and six councilpersons govern the City. As required by accounting principles generally accepted in the United States of America, these financial statements present the City (the primary government) and its component units, which are entities for which the City is considered to be financially accountable. Blended component units, although legally separate entities, are, in substance, part of the City's operations, and so data from these units are combined with data of the primary government. A discretely presented component unit, on the other hand, is reported in a separate column in the government -wide financial statements to emphasize it is legally separate from the City. The City had no component units, discretely presented or blended, at September 30, 2015. B. Government -wide and fund financial statements The basic financial statements include both government -wide (based on the City as a whole) and fund financial statements. The reporting focus is either the City as a whole (government -wide financial statements) or major individual funds (within the fund financial statements). The government -wide financial statements (i.e., the statement of net position and the statement of activities) report information on all non - fiduciary activities of the primary government. For the most part, the effect of inter -fund activity has been removed from these statements. Governmental activities, which normally are supported by taxes and intergovernmental revenues, are reported separately from business -type activities, which rely to a significant extent on fees and charges for support. The government -wide statement of activities demonstrates the degree to which the direct expenses of a functional category (public safety, public works, etc.) or segment are offset by program revenues. Direct expenses are those that are clearly identifiable with a specific function or segment. Program revenues include (1) charges to customers or applicants who purchase, use or directly benefit from goods, services or privileges provided by a given function or segment; (2) grants and contributions that are restricted to meeting operational requirements of a particular function or segment; and (3) grants and contributions that are restricted to meeting the capital requirements of a particular function or segment. Taxes and other items not properly included among program revenues are reported instead as general revenues. The net cost (by function or business -type activity) is normally covered by general revenue (property taxes, sales taxes, franchise fees, interest income, etc.). Separate fund financial statements are provided for governmental funds, proprietary funds, and fiduciary funds, even though the latter are excluded from the government -wide financial statements. Major governmental funds and major enterprise funds are reported as separate columns in the fund financial statements. GASB Statement No. 34 sets forth minimum criteria (percentage of assets, liabilities, revenues or expenditures /expenses of either fund category and for the governmental and enterprise funds combined) 35 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 for the determination of major funds. Non -major funds are combined in a column in the fund financial statements. Internal service funds, which traditionally provide services primarily to other funds of the government, are presented in summary form as part of the proprietary fund financial statements. The financial statements of internal service funds are allocated (based on the percentage of goods or services provided) between the governmental and business -type activities when presented at the government -wide level. The City's fiduciary funds are presented in the fund financial statements. Since by definition these assets are being held for the benefit of a third party (other local governments, individuals, etc.) and cannot be used to address activities or obligations of the government, these funds are not incorporated into the government - wide statements. The government -wide focus is more on the sustainability of the City as an entity and the change in aggregate financial position resulting from the activities of the fiscal period. The focus of the fund financial statements is on the major individual funds of the governmental and business -type categories, as well as the fiduciary funds (by category). Each presentation provides valuable information that can be analyzed and compared to enhance the usefulness of the information. C. Measurement focus, basis of accounting and financial statement presentation The government -wide financial statements are reported using the economic resources measurement focus and the accrual basis of accounting, as are the proprietary fund statements. Revenues are recorded when earned, and expenses are recorded when a liability is incurred, regardless of the timing of related cash flows. Property taxes are recognized as revenues in the year for which they are levied. Grants and similar items are recognized as revenue as soon as all eligibility requirements imposed by the provider have been met. Governmental fund -level financial statements are reported using the current financial resources measurement focus and the modified accrual basis of accounting. Revenues are recognized as soon as they are both measurable and available. Revenues are considered to be available when they are collectible within the current period or soon enough thereafter to pay liabilities of the current period. For this purpose, the government considers revenues to be available if they are collected within 60 days of the end of the current fiscal period. Expenditures generally are recorded when a liability is incurred, as under accrual accounting. However, debt service expenditures, as well as expenditures related to compensated absences and claims and judgments, are recorded only when payment is due. Property tax, franchise fees, sales tax and other taxes associated with the current fiscal period are all susceptible to accrual and so have been recognized as revenues of the current fiscal period. All of the other revenue items are considered to be measurable and available only when cash is received. The City reports the following major governmental funds: The general fund is the City's primary operating fund. All general tax revenues and other receipts that are not allocated by law or contractual agreement to some other fund are accounted for in this fund. From the fund are paid general operating costs, fixed charges and capital improvement costs that are not paid through other funds. The debt service fund accounts for the accumulation of financial resources for the payment of principal, interest and related costs on general long -term debt, paid primarily by taxes levied by the City. On a budgetary- basis, the debt service fund also accounts for pass - through debt service payments from the self - supporting proprietary funds. The capital projects fund accounts for financial resources used for the acquisition or construction of capital other than those recorded in the enterprise funds and internal service funds. Other governmental funds are a summarization of all of the non -major governmental funds. 36 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 The City reports the following major proprietary funds: The City utility system is made up of three separate funds as follows: The electric fund accounts for electrical utility services to the residents and commercial establishments of the City. Activities necessary to provide such services are accounted for in the fund, including, but not limited to, administration, operations, maintenance, finance and related debt service. The water fund accounts for water utility services to the residents and commercial establishments of the City. Activities necessary to provide such services are accounted for in the fund, including, but not limited to, administration, operations, maintenance, finance and related debt service. The wastewater fund accounts for sewer and storm water services to the residents and commercial establishments of the City. Activities necessary to provide such services are accounted for in the fund, including, but not limited to, administration, operations, maintenance, finance and related debt service. The City provides additional services through the following funds: The solid waste fund accounts for the provision of solid waste services to the residents of the City. Activities necessary to provide such services are accounted for in the fund, including, but not limited to, administration, operations, maintenance, finance and related debt service. The airport fund accounts for the airport services to the public and is funded through operational and gas well revenues. Activities necessary to provide such services are accounted for in the fund, including, but not limited to, administration, operations, maintenance, finance and related debt service. The City additionally reports the following funds: Internal service funds are used to account for the financing of materials and services provided by one department of the City to other departments of the City on a cost - reimbursement basis. Agency funds are used to account for the payment of payroll, developers' escrow funds, and other similar liabilities. The City holds the assets in an agency capacity for individuals, private organizations or other governments. Proprietary funds distinguish operating revenues and expenses from non - operating items. Operating revenues and expenses generally result from providing services and producing and delivering goods in connection with a proprietary fund's principal ongoing operations. The principal operating revenues of the City's electric, water, wastewater, solid waste, and airport funds are charges to customers for services. Operating expenses for the enterprise funds and internal service funds include the cost of sales and services, administrative expenses and depreciation on capital assets. All revenues and expenses not meeting this definition are reported as non - operating revenues and expenses. For deferred charges, the City recognizes, as an asset or a liability, the difference between the electric fund's energy cost adjustment (ECA) revenue collected and related costs. When both restricted and unrestricted resources are available for use, it is the City's policy to use restricted resources first, then unrestricted resources as they are needed. D. Assets, liabilities and net assets or equity 1. Cash. cash eauivalents and investments The City's cash and cash equivalents are considered to be cash on hand, demand deposits and short-term investments with original maturities of three months or less from the date of acquisition. Investments are carried at fair value or cost, if maturities are one year or less. Fair value is determined as the price at which two willing parties would complete an exchange. The City uses a pooled cash and 37 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 investment fund to hold and account for all of the City's investments. For financial reporting purposes, the investment balances in the pooled fund are allocated back to the individuals funds based on their respective share of the pooled total. Interest earned on investments is also allocated back and recorded directly to the individual funds on a monthly basis. 2. Receivables Outstanding balances between funds are reported as "interfund receivables /payables." Any residual balances between governmental activities and business -type activities are reported in the government - wide statements as "internal balances." Trade and property tax receivables are shown net of an allowance for uncollectible accounts. The City accrues amounts for utility services provided in September, but not billed at September 30, 2015. 3. Inventories Inventories of supplies are maintained at the City warehouse for use by all City funds and are accounted for by the consumption method. Cost is determined using a moving average method. No inventories exist in the governmental fund types. 4. Prepaid items Certain costs applicable to future accounting periods are recorded as prepaid items. During the past few recent fiscal years the City prepaid certain contractual obligations to the Texas Municipal Power Agency (TMPA) relating to the cost of TMPA providing energy to the City. The benefit from the prepayment is being amortized over the benefit period of 15 years, of which 9.5 years is remaining. 5. Restricted assets Certain proceeds of the City's governmental and proprietary fund revenue bonds, general obligation bonds, and certificates of obligation, as well as certain resources set aside for their repayment, are classified as restricted assets on the balance sheet because their use is limited by applicable bond covenants. Assets collected from impact fees are limited by state statute in use and also shown as restricted on the balance sheet of the Water and Wastewater funds. 6. Capital assets Capital assets, which include property, plant, equipment and infrastructure assets (e.g., roads, bridges, sidewalks and similar items) are reported in applicable governmental or business -type activities columns in the government -wide financial statements and in the proprietary fund financial statements. The City defines capital assets as assets with an initial, individual cost of more than $5,000 and an estimated useful life in excess of one year. Such assets are recorded at historical cost or estimated historical cost if purchased or constructed. Donated capital assets are recorded at estimated fair value at the time received. Major outlays for capital assets and improvements are capitalized as projects are constructed. Net interest incurred during the construction phase of capital assets of business -type activities and enterprise funds is included as part of the capitalized value of the assets constructed. For 2015, net interest capitalization of $2,543,807 was recorded for electric fund projects, $903,183 for water fund projects, $811,176 for wastewater fund projects, $95,375 for solid waste fund projects, and $91,702 for airport fund projects. 38 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Capital assets are depreciated using the straight -line method over the following useful lives: Assets Years Buildings 40 Infrastructure 20-40 General improvements 10 Machinery and equipment 10-20 Furniture and office equipment 10 Computer equipment/software 3— 10 Plant and equipment 5 Underground pipe 40 Water storage rights 50— 100 Water recreation rights 50 Communication equipment 5 Vehicles 3— 10 Renewals and betterments of property and equipment are capitalized, whereas normal repair and maintenance are charged to expense as incurred. 7. Compensated absences The City allows full -time employees to accumulate unused vacation up to 320 hours (480 for Civil Service Fire employees.) Upon termination, any accumulated vacation time will be paid to an employee. Generally, sick leave is not paid upon termination except for civil service fire fighters and police officers. Firefighters and police officers accumulate unused sick leave up to a maximum of 1080 hours and 720 hours, respectively. All other employees are paid only upon illness while employed by the City. Accumulated vacation and sick leave is accrued when incurred in the government -wide, proprietary and fiduciary fund financial statements. A liability for these amounts is reported in governmental funds only if they have matured, for example, as a result of employee resignations and retirements but have not been paid this amount at the end of the fiscal year. The General Fund and Other Governmental Funds are used to record any payout expenditures of the governmental funds' employees and related liability, while proprietary fund payouts for their employees are recorded as reductions to the liabilities in those funds. 8. Arbitrage Arbitrage involves the investment of the proceeds from the sale of tax - exempt bonds in taxable instruments and securities authorized by the Public Funds Investment Act (Texas Government Code, Chapter 2256) that yield a higher rate, resulting in interest revenue in excess of interest costs. Federal tax code requires that these excess earnings be rebated to the federal government. The Capital Projects Fund has been used in prior years to liquidate governmental funds' related liability. 9. Pensions For purposes of measuring the net pension liability, pension - related deferred outflows and inflows of resources, and pension expense, information about the Fiduciary Net Position of the Texas Municipal Retirement System (TMRS) and the Firemen's Relief and Retirement Fund (FRRF) and additions to /deductions from TMRS's and the FRRF's Fiduciary Net Position have been determined on the same basis as they are reported by TMRS and the FRRF. For this purpose, plan contributions are recognized in the period that compensation is reported for the employee, which is when contributions are legally due. Benefit payments and refunds are recognized when due and payable in accordance with the benefit terms. Investments are reported at fair value. 39 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 10. Lona -term obligations In the government -wide financial statements and proprietary fund types in the fund financial statements, long -term obligations are reported as liabilities. Bond premiums and discounts are deferred and amortized over the life of the bonds. Bonds payable are reported net of the applicable bond premium or discount. Gain/loss on refunding are reported as deferred outflow /inflow and recognized as a component of interest expense over the remaining life of the old debt or life of the new debt, whichever is shorter. In the fund financial statements, governmental fund types recognize bond premiums and discounts, as well as bond issuance costs, during the current period. The face amount of debt issued is reported as other financing sources. Premiums received on debt issuances are reported as other financing sources while discounts on debt issuances are reported as other financing uses. Issuance costs, whether or not withheld from the actual debt proceeds received, are reported as debt service expenditures. 11. Fund equity The City follows GASB Statement No. 54, "Fund Balance Reporting and Governmental Fund Type Definitions ", and in accordance with the statement, the classifications of governmental fund balances are presented as follows: Nonspendable fund balances — includes amounts not in a spendable form or are legally or contractually required to be maintained intact. Examples include inventory or endowments. Restricted fund balance — includes amounts that can be spent only for the specific purposes stipulated by external resource providers, creditors, grantors, and contributors or through enabling legislation. Committed fund balance — includes amounts that can be used only for the specific purposes determined by the City Council through an ordinance and may only be changed or lifted through another ordinance. The ordinance must either adopt or rescind the commitment, as applicable, prior to the last day of the fiscal year for which the commitment is made. The amount subject to the constraint may be determined in the subsequent period. Assigned fund balance - comprises amounts intended to be used for specific purposes. Intent can be expressed by the City Council, or per the policy adopted by an ordinance by the City Council, the City Manager or the City Manager's designee (assistant city manager) may also make an assignment. In governmental funds other than the general fund, assigned fund balance represents the amount that is not restricted or committed and, at a minimum, is intended for the purpose of that fund. Unassigned fund balance — is the residual classification of the general fund and includes all amounts not constrained in the other classifications. Unassigned amounts are technically available for any purpose. When multiple categories of fund balance are available for expenditure and approved for use by the City Council, the City will start with the most restricted category and spend those funds first before moving down to the next category with available funds. Normally this would result in the use of restricted, then committed, then assigned, and lastly, unassigned fund balance. 12. Minimum fund balance policy It is the goal of the City to achieve and maintain an unassigned fund balance in the general fund equal to 20% of budgeted expenditures for unanticipated expenditures, unforeseen revenue fluctuations, or other adverse circumstances. The fund balance level, however, may be reduced to the equivalent of 15% of budgeted expenditures in unusual financial circumstances. However, if such a situation occurs, the City will implement necessary corrective action within a five -year plan to restore the unassigned fund balance to the equivalent of 20% of budgeted expenditures. 40 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 13. Net position Net position represents the difference between assets, deferred inflows, deferred outflows, and liabilities. Net investment in capital assets consists of capital assets net of accumulated depreciation and the outstanding balances of any borrowing spent for the acquisition, construction or improvements of those assets. Net position is reported as restricted when there are limitations imposed on their use either through the enabling legislation adopted by the City or through external restrictions imposed by creditors, grantors or laws or regulations of other governments. 14. Deferred outflows and inflows of resources In addition to assets, the statement of net position and /or balance sheet will sometimes report a separate section for deferred outflows of resources. This separate financial statement element, deferred outflows of resources, represents a consumption of net position applying to a future period and will not be recognized as an outflow of resources, either expenses or expenditures, until that time. The City reports the following items qualifying for this category: Deferred charges on refunding reported in the statements of net position - A deferred charge on refunding results from the difference in the carrying value of refunded debt and its reacquisition price and is amortized over the shorter of the life of the refunded or refunding debt. Deferred pension actuarial losses reported in the statement of net position — A deferred charge is recorded for the difference between actual experience and expected experience during the period between two actuarial valuations and is amortized over future periods. Deferred pension contributions reported in the statement of net position — A deferred charge is recorded for pension contribution amounts paid by the City after the current year's measurement date (December 2014) and will be fully recognized in the next period on the next measurement date (December 2015). In addition to liabilities, the statement of net position and /or balance sheet will sometimes report a separate section for deferred inflows of resources. This separate financial statement element, deferred inflows of resources, represents an acquisition of net position applying to a future period and will not be recognized as an inflow of resources, or revenues, until that time. The City has two types of items qualifying for reporting in this category: • Deferred pension excess earnings reported in the statement of net position — A deferred charge is recorded for the difference between actual investment earnings and expected investment earnings during the period and is amortized over future periods. • Deferred unavailable revenues reported on the balance sheet of the governmental funds — A deferred amount is recorded for the billed revenues not yet collected or available. These amounts are deferred and recognized as inflow of resources in the period the amounts become available. E. Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses /expenditures during the reporting period. Actual results could differ from those estimates. 41 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 F. Prior period adjustments Two adjustments have been recorded to the beginning net position. The details of the adjustments are as follows: One adjustment was an increase to the net position balance of $1,539,155 in the Government -wide for the Governmental Activities due to an adjustment of the over - accrual of unpaid compensated absences related to fire sick leave. The prior period adjustment is recovering the related public safety expenses and reducing the liability. The second adjustment was a decrease in fund -level net position for certain proprietary funds, governmental activities net position in the government -wide statement of activities, and business -type activities net position in the government -wide statement of activities due to the implementation of GASB Statement No. 68 "Accounting and Financial Reporting for Pensions -an amendment of GASB Statement No. 27" and Statement No. 71 "Pension Transition for Contributions Made Subsequent to the Measurement Date an amendment of GASB Statement No. 68. " This resulted in a government -wide net decrease in net position of $60,708,342 due to recording the full pension obligation liability, a decrease in net position of $71,975,646, as well as the related deferred outflows for pension contributions, an increase in net position of $11,267,304. See footnote V.H. for additional GASB information. IL RECONCILIATION OF GOVERNMENT -WIDE AND FUND FINANCIAL STATEMENTS Explanation of certain differences between the governmental fund statement of revenues, expenditures and changes in fund balances and the government -wide statement of activities Another element of that reconciliation states, "Bond proceeds provide current financial resources to governmental funds, but issuing debt increases long -term liabilities in the statement of net position. Repayment of bond principal is an expenditure in the governmental funds, but the repayment reduces long - term liabilities in the statement of net position. This is the amount by which payments exceeded proceeds." The details of this ($16,996,017) difference are as follows: 42 Net Position at Change in Change in Net Position at September 30, 2014, Reporting for Accrual of Unpaid September 30, 2014, as Previously Reported Pension Obligations Compensated Absences as Restated Government -Wide Information Governmental Activities 169,244,490 (40,786,474) 1,539,155 129,997,171 Business -Type Activities 551,250,426 (19,921,868) - 531,328,558 Fund Level Information Electric 146,369,635 (8,206,728) - 138,162,907 Water 188,307,469 (4,174,545) - 184,132,924 Wastewater 170,789,022 (3,223,688) - 167,565,334 Solid Waste 20,728,524 (4,034,719) - 16,693,805 Airport 15,174,031 (282,188) - 14,891,843 Materials Management 1,124,101 (538,586) - 585,515 Fleet Services 3,536,716 (654,702) - 2,882,014 Risk Retention 4,344,688 (361,944) - 3,982,744 Technology Services 5,131,137 (1,628,232) - 3,502,905 Engineering Services 482,179 (1,341,036) - (858,857) One adjustment was an increase to the net position balance of $1,539,155 in the Government -wide for the Governmental Activities due to an adjustment of the over - accrual of unpaid compensated absences related to fire sick leave. The prior period adjustment is recovering the related public safety expenses and reducing the liability. The second adjustment was a decrease in fund -level net position for certain proprietary funds, governmental activities net position in the government -wide statement of activities, and business -type activities net position in the government -wide statement of activities due to the implementation of GASB Statement No. 68 "Accounting and Financial Reporting for Pensions -an amendment of GASB Statement No. 27" and Statement No. 71 "Pension Transition for Contributions Made Subsequent to the Measurement Date an amendment of GASB Statement No. 68. " This resulted in a government -wide net decrease in net position of $60,708,342 due to recording the full pension obligation liability, a decrease in net position of $71,975,646, as well as the related deferred outflows for pension contributions, an increase in net position of $11,267,304. See footnote V.H. for additional GASB information. IL RECONCILIATION OF GOVERNMENT -WIDE AND FUND FINANCIAL STATEMENTS Explanation of certain differences between the governmental fund statement of revenues, expenditures and changes in fund balances and the government -wide statement of activities Another element of that reconciliation states, "Bond proceeds provide current financial resources to governmental funds, but issuing debt increases long -term liabilities in the statement of net position. Repayment of bond principal is an expenditure in the governmental funds, but the repayment reduces long - term liabilities in the statement of net position. This is the amount by which payments exceeded proceeds." The details of this ($16,996,017) difference are as follows: 42 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Debt issued or incurred: Issuance of general obligation debt $(36,110,000) Issuance of certificates of obligation (7,420,000) Principal repayments: General obligation debt principal retirement 7,061,784 Certificates of obligation principal retirement 4,805,000 Refunded debt principal 14,615,000 Lease obligations principal retirement 52,199 Net adjustment to decrease net changes in fund balances — total governmental funds to arrive at changes in net position of governmental activities $(16,996,017) Another element of that reconciliation states, "The net effect of various miscellaneous transactions involving capital assets (i.e., sales, trade -ins and donations) is to increase net position." The details of this $4,186,092 difference are as follows: Net effect of transactions involving asset retirements /disposals $ (290,574) Capital assets transferred to business -type activities as capital contributions (629,320) Donations of capital assets increase net position in the statement of activities but do not appear in the governmental funds because they are not financial resources 5,105,986 Net adjustment to increase net changes in fund balances - total governmental funds $ 4,186,092 Another element of that reconciliation states, "Certain expenses reported in the statement of activities do not require the use of current financial resources and therefore are not reported as expenditures in governmental funds." The details of the ($186,037) difference are as follows: Compensated absences $ (751,625) Municipal pension obligation (265,577) Municipal pension deferred actuarial losses 1,712,205 Municipal pension deferred contributions 196,401 Municipal pension deferred excess earnings (69,230) Other post employment benefits (588,176) Accrued interest (47,961) Net adjustment to decrease net changes in fund balances - total governmental funds to arrive at changes in net position of governmental activities $ 186,037 III. STEWARDSHIP, COMPLIANCE AND ACCOUNTABILITY A. Budgetary information The City Council follows these procedures, as prescribed by City Charter, in establishing the budgets reflected in the financial statements: 43 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 1. Within the time period required by law, the City Manager submits to the City Council a proposed budget for the fiscal year beginning on the following October 1. The operating budget includes proposed expenditures and the means of financing them. 2. Public hearings are conducted prior to the adoption of the budget in order to obtain taxpayer comments. The annual budget adopted by the City Council covers the general fund, non -major special revenue funds (Recreation Fund, Police Confiscation Fund, Tourist and Convention Fund, Gas Well Revenues Fund, Street Improvement Fund, and the Citizens' Park Trusts), the debt service fund, the enterprise funds, and internal service funds. The budget is legally enacted by the City Council through passage of an ordinance prior to the beginning of the fiscal year. The basic financial statements reflect the legal level of control, (i.e. the level at which expenditures cannot legally exceed the appropriated amount) which is established at the total fund level as approved by City Council. 4. The City Charter provides that the City Manager may transfer any part of the unencumbered appropriation balance or the entire balance thereof between programs or general classifications of expenditures within an office, department, agency or organizational unit. (The City Council defines an organizational unit as set forth in Article VIII, Section 8.07 of the City Charter, to be a fund that has been appropriated by the City Council.) City Council approval is not required up to the fund level. The Charter also provides that at any time during the year, at the request of the City Manager, City Council may by resolution transfer any part of the unencumbered appropriation balance or the entire balance thereof from one office, department, agency, or organizational unit to another, as well as make any increases in fund appropriations. Budgets are adopted on a basis for the governmental funds and the budgeted special revenue funds that is generally consistent with generally accepted accounting principles. Budgets for enterprise funds are prepared on the full accrual basis, except certain noncash transactions such as depreciation expense and amortization on debt issuance costs where it is not budgeted, and debt service payments where it is budgeted. Also, during the budgetary process, amounts are included in all fund budgets to recognize administrative transfers between funds for goods or services. These amounts are not included in the reporting of actual activity for the funds. For funds reporting required budget -to- actual comparisons, these administrative transfers are included as adjustments — budgetary basis. B. Deficit fund equity The criminal justice fund had a deficit fund balance of ($73,857) at September 30, 2015. The deficit was a result of reimbursement timing and is anticipated to clear in fiscal year 2015 -2016. The engineering services internal service fund had a deficit net position of ($408,902) due to the implementation of GASB Statement No. 68 "Accounting and Financial Reporting for Pensions -an amendment of GASB Statement No. 27 " which resulted in a significant increase in the municipal pension obligation. See footnote V.H. for additional GASB information. IV. DETAILED NOTES ON ALL FUNDS A. Deposits and investments In order to facilitate effective cash management practices, the operating cash of all funds is pooled into a common account for the purpose of increasing income through combined investment activities. At year -end, the City had $53,723,227 in cash and cash equivalents of which $1,935,243 is included in the agency funds and $15,129 in petty cash. The Public Funds Investment Act (Texas Government Code) authorizes the City to invest in obligations of the U.S. Treasury, U.S. agencies, fully collateralized repurchase agreements, public fund investment pools, SEC - registered no -load money market mutual funds, investment -grade rated municipal securities of any state, fully collateralized or insured certificates of deposit, and commercial paper rated not less than A -1 or P -1 with a stated maturity of no more than 270 days. The City's investment policy may further restrict those 44 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 investment options. The investments reported on September 30, 2015 were similar to those held during the fiscal year. The City reports all investments in the financial statements at fair value. At September 30, 2015, the City's investments carried a fair value of $451,319,728 and were as follows: Average Maturity Investment Type Fair Value (Days) U.S. Treasury Securities - Coupon $ 22,097,839 323 U.S. Agency Securities - Coupon U.S. Agency Securities - Callable Commercial Paper Municipal Bonds - Coupon Certificates of Deposit - Insured and Collateralized Total fair value of investments Portfolio weighted average maturity 233,125,024 389 10,010,213 578 20,964,779 153 38,121,873 297 127,000,000 439 $ 451,319,728 385 Interest rate risk. In accordance with its investment policy, the City manages its exposure to declines in fair values due to interest rate fluctuations by limiting the weighted average maturity of its investment portfolio to less than eighteen months. Credit risk. The City's investment policy limits investments to obligations of the United States of America and its agencies, investment quality obligations of the State of Texas (including Texas municipalities) with a rating not less than AA, fully insured or collateralized Certificates of Deposits, and commercial paper that has a maturity of 270 days or less and a rating of A -I or P -1. The City's investments in the bonds of U.S. agencies were rated AA+ by Standard & Poor's and AAA by Fitch Ratings. The City's investment in municipal bonds were rated AAA or AA+ by Standard & Poor's. Custodial credit risk. This is the risk that in the event of a bank or counterparty failure, the City's deposits may not be returned. The policy states that all bank deposits of City funds shall be secured by pledged collateral with a market value equal to no less than 102 percent of the principal plus accrued interest less an amount insured by FDIC. As of September 30, 2015, the bank balance for deposits was $54,517,672 and was fully collateralized by the City's third party custodian, Wells Fargo. Cash, cash equivalents and investments, at fair value are reported together on the financial statements. Investments, at fair value, by fund were as follows: 45 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Unrestricted investments Change in fair value Restricted investments Change in fair value Total Unrestricted investments Change in fair value Restricted investments Change in fair value Total Unrestricted investments Change in fair value Restricted investments Change in fair value Total B. Property tax revenue Capital General Fund Debt Service Projects $ 23,871,644 $ 4,247,991 $127,719,489 27,062 4,816 144,787 Other Governmental Fund, $ 14,208,711 16,108 $ 23,898,706 $ 4,252,807 $127,864,276 $ 14,224,819 Electric $ 52,874,347 59,940 73,394,038 83,202 $126,411,527 Airport $ 3,657,108 4,146 559,808 635 Water Wastewater Solid Waste $30,303,593 $ 23,735,935 $ 5,100,506 34,353 26,908 5,782 30,349,959 23,066,660 20,230,380 34,406 26,149 22,934 $60,722,311 $ 46,855,652 $ 25,359,602 Internal Service Total City Other Agency Funds Investments Funds $17,282,748 19,592 $ 4,221,697 $17,302,340 $303,002,072 343,494 147,600,845 167,326 $451,113,737 $ 205,758 233 $ 205,991 Total City and Agency Investments $303,207,830 343,727 147,600,845 167,326 $451,319,728 Property taxes attach as an enforceable lien on property as of January 1st. Taxes are levied on October 1st and are due and payable at that time; therefore, the legally enforceable claim arises on October 1st. A receivable is recorded at that time. All unpaid taxes levied October 1 st become delinquent February 1st of the following year. Property taxes at the fund level are recorded as receivables and revenue in the period they become available. Current -year revenues recognized are those Ad valorem taxes collected within the current period or soon enough thereafter to pay current liabilities, which is sixty days after year -end. All other outstanding receivables are adjusted from revenue and recognized as deferred inflows of resources for future collections. Current tax collections for the year ended September 30, 2015 were 99.39% of the tax levy. An allowance is provided for delinquent taxes not expected to be collected in the future. At September 30, 2015, the City had a tax rate of $0.68975 per $100 valuation. Based upon the maximum Ad valorem tax of $2.50 per $100 valuation imposed by Texas Constitutional law, the City had a tax rate margin of $1.81025. Additional revenues up to $141,148,407 could be raised per year based on the current year's certified assessed value of $7,797,177,608 before the limit is reached. On December 7, 2010, the City Council approved a Tax Increment Financing Reinvestment Zone (TIRZ 91) for the purpose of dedicating the increase in tax revenues generated within the TIRZ district for development in the downtown area of the City for a total of 30 years. The tax increment to be paid is 100% of the increment in years 1 -5, 95% in years 6 -10, 90% in years 11 -20, and 85% in years 21 -30. In fiscal year 2015, the total assessed value of $116,769,435 after supplemental adjustments for TIRZ 91 was an increase of $37,412,581 46 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 over the base fiscal year 2011 assessed value and resulted in $258,053 of property tax revenue recorded in the TIRZ Fund as part of All Other Special Revenue Funds. On December 18, 2012, the City Council approved a Tax Increment Financing Reinvestment Zone (TIRZ 92) for the purpose of dedicating 40% of the increase in tax revenues generated within the TIRZ district for development in the Westpark Industrial District for a total of 25 years. In fiscal year 2015, the assessed value of $555,807 after supplemental adjustments was an increase of $436,349 over the base fiscal year 2014 assessed value and resulted in $1,204 of property tax revenue recorded in the TIRZ Fund as part of All Other Special Revenue Funds. Denton County participates in the zone and based on their tax rate and a participation contribution of 40% of the County's tax rate, $132 of property tax revenue was generated for Fiscal Year 2015. The City created the Rayzor Ranch Public Improvement District No. 1 in 2014 for the undertaking and financing of public improvements authorized by Chapter 372 of the Texas Local Government Code. The project is located on the City's northern sector, east of Interstate 35, and encompasses approximately 229.693 contiguous acres. The estimated costs of the proposed public improvements total $40 million. The authorized improvement costs will be apportioned 100% to the District. The method of assessment will impose equal shares of the costs of the proposed public improvements on parcels that are similarly benefited. No City property will be assessed, and the City will not be obligated to pay any assessments. C. Receivables Receivables at September 30, 2015 for the City's individual major funds and other funds (non -major funds, internal service funds and fiduciary funds), including the applicable allowances for uncollectible accounts, are shown below. Receivables: Taxes Accounts Accrued interest Unbilled utility service Other Gross receivables Less: Allowance for uncollectibles Net total receivables Receivables: Taxes Accounts Accrued interest Unbilled utility service Other Gross receivables Less: Allowance for uncollectibles Net total receivables $ 6,264,588 148,307 93,227 7,231,300 13,737,422 Other Capital Governmental Debt Service Projects Funds Electric $ 406,371 $ - $ - $ - - - 32,498 9,745,710 16,590 498,788 55,489 493,122 - - - 9,631,641 - - 476,555 480,860 422,961 498,788 564,542 20,351,333 (5,053,617) (168,039) - (29,087) (1,062,155) $ 8,683,805 $ 254,922 $ 498,788 $ 535,455 $ 19,289,178 Internal Service Water Wastewater Solid Waste Airport Funds Total $ - $ - $ - $ - $ - $ 6,670,959 2,499,658 1,641,057 1,469,728 30,794 1,246 15,568,998 236,874 182,775 98,926 16,468 67,495 1,759,754 2,509,573 1,576,294 1,498,635 - - 15,216,143 1,052 - - 111,692 58,898 8,360,357 5,247,157 3,400,126 3,067,289 158,954 127,639 47,576,211 (272,430) (178,853) (160,181) (3,986) - (6,928,348) $ 4,974,727 $ 3,221,273 $ 2,907,108 $ 154,968 $ 127,639 $ 40,647,863 47 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 D. Capital assets 1,540,798 - 24,006,704 137,740,521 7,683,790 - Capital asset balances and transactions for the year ended September 30, 2015 are summarized below and on the following page. 15,365,007 (2,534,607) 225,330,623 159,702,450 3,815,170 (690,980) 162,826,640 Balance at Transfers and Balance at Governmental activities: October 1, 2014 Increases Decreases September 30, 2015 Capital assets not being depreciated: Land $ 15,764,824 $ 102,197 $ - $ 15,867,021 Construction in progress 37,019,788 24,024,362 (11,183,111) 49,861,039 Total capital assets not being depreciated 52,784,612 24,126,559 (11,183,111) 65,728,060 Capital assets being depreciated: Buildings Infrastructure Machinery, equipment, and other improvements Total capital assets being depreciated Less accumulated depreciation for: Buildings Infrastructure Machinery, equipment, and other improvements Total accumulated depreciation Total capital assets, being depreciated, net Governmental activities capital assets, net 60,796,431 229,962,965 81,443,277 372,202,673 7,226,477 - 11,953,700 (3,225,587) 19,180,177 (3,225,587) 60,796,431 237,189,442 90,171,390 388,157,263 22,465,906 1,540,798 - 24,006,704 137,740,521 7,683,790 - 145,424,311 52,293,796 6,140,419 (2,534,607) 55,899,608 212,500,223 15,365,007 (2,534,607) 225,330,623 159,702,450 3,815,170 (690,980) 162,826,640 $ 212,487,062 $ 27,941,729 $ (11,874,091) $ 228,554,700 48 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Business -type activities: Capital assets not being depreciated: Land Construction in progress Total capital assets not being depreciated Capital assets being depreciated: Buildings Landfill improvements Water rights Infrastructure Plant, machinery, equipment, and other improvements Total capital assets being depreciated (continued) Balance at 78,330 Transfers and Balance at October 1, 2014 Increases Decreases September 30, 2015 Infrastructure 122,518,923 Plant, machinery, equipment, and other 132,717,410 $ 22,287,452 $ 1,387,820 $ - $ 23,675,272 194,806,954 97,552,109 (78,977,233) 213,381,830 217,094,406 98,939,929 (78,977,233) 237,057,102 15,760,578 3,222,363 273,827 19,256,768 23,635,426 395,487 - 24,030,913 69,883,098 - - 69,883,098 393,351,259 53,535,954 234,593 447,121,806 308,718,560 27,541,281 (4,134,919) 332,124,922 811,348,921 84,695,085 (3,626,499) 892,417,507 Less accumulated depreciation for: 78,330 Buildings 5,823,646 Landfill improvements 14,366,463 Water rights 17,658,524 Infrastructure 122,518,923 Plant, machinery, equipment, and other 132,717,410 improvements 152,464,690 Total accumulated depreciation 312,832,246 Total capital assets, being depreciated, net 498,516,675 557,954 78,330 6,459,930 3,089,234 - 17,455,697 695,989 - 18,354,513 10,111,130 87,357 132,717,410 13,317,724 (3,877,443) 161,904,971 27,772,031 (3,711,756) 336,892,521 56,923,054 85,257 555,524,986 Business -type activities capital assets, net $ 715,611,081 $ 155,862,983 $ (78,891,976) $ 792,582,088 Transfers and decreases include $273,827 ($78,330 in related accumulated depreciation) from Water Infrastructure to Buildings and $564,555 transferred from Governmental Activities to Business -Type Infrastructure. 49 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Depreciation expense was charged to activities of funds /functions /programs as follows: Governmental activities: General government $ 2,109,298 Public Safety 2,096,825 Public Works 7,313,606 Parks & Recreation 1,760,146 Capital assets held by the internal service funds are charged to the various functions based upon usage 2,085,132 Total depreciation expense - governmental activities $15,365,007 Business -type activities: Electric $ 8,595,585 Water 6,269,984 Wastewater 6,099,265 Solid Waste 6,197,190 Airport 610,007 Total depreciation expense - business -type activities $ 27,772,031 Construction commitments: The City has several major construction/capital projects planned or in progress as of September 30, 2015. These projects are evidenced by contractual commitments with contractors and include: 50 Remaining Project Spent -to -Date Commitment Arco Substation Reconstruction $ 7,417,423 $ 5,208,732 Fire Station 42 Expansion 2,855,992 3,147,012 Kings Row Substation Construction 8,029,087 2,865,404 Bonnie Brae Widening - Phase I Engineering 4,692,449 2,542,718 Pecan Creek Sewer Interceptor Phase 3 667,223 2,419,761 Denton North - Kings Row Transmission Line 5,040,431 2,103,646 North Lakes Substation Expansion 2,166,470 1,997,912 Paint Water Treatment Clearwell No. 3 576,876 1,879,360 Civic Center Pool Improvement 110,508 1,832,377 Lilian Miller Asphalt Street Reconstruction 89,411 1,580,128 50 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 E. Interfund receivables, payables and transfers A summary of interfund receivables and payables (in thousands) at September 30, 2015, is as follows: Interfund Receivables: Interfund Payables: Non -Major Governmental Funds Internal Service Funds Total Governmental Major Funds Business -Type Major Funds Non -Major Governmental General Fund Funds Electric Water Wastewater Total $ - $ 105 $ - $ - $ - $ 105 316 - 3,087 467 130 4,000 $ 316 $ 105 $ 3,087 $ 467 $ 130 $ 4,105 The more significant interfund receivables and payables include the following: Interfund receivables Interfund payables Amount Electric fund Internal service funds - materials management $ 3,086,729 Water fund Internal service fluids- materials management 467,242 General fund Internal service funds - materials management 316,069 Wastewater fund Internal service funds - materials management 129,960 The outstanding balances between the Electric, Water, Wastewater, and General Fund and the Materials Management Fund are a result of the cash position in the Materials Management Fund due to inventory purchases. Transfers between funds (in thousands) during the year were as follows: Transfers In: Governmental Major Funds: Debt Service Fund Capital Projects Fund Non -Major Govermnental Funds Electric Fund Water Fund Wastewater Fund Solid Waste Fund Internal Service Funds Total Governnental Major Funds Internal Non -Major Wastewater Governmental Electric General Fund Funds Fund Fund Fund 1,654 1,170 - 156 25 390 30 - - $ - 36 Transfers Out: Business -Tvne Maior Funds $ 1,840 $ 1,231 $ 390 $ 124 $ 987 $ 405 $ 50 $ 381 $ 5,408 51 Internal Water Wastewater Solid Airport Service Fund Fund Waste Fund Funds Total $ - $ 383 $ - $ $ - $ 383 9 - 170 381 3,384 87 82 - 50 - 790 - - - 30 - 51 - 51 28 - 235 263 - 471 - 471 - 36 $ 1,840 $ 1,231 $ 390 $ 124 $ 987 $ 405 $ 50 $ 381 $ 5,408 51 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 The more significant transfers include the following: Transfers from fund General Fund Non -Major Gov't — Street Improvements Business -type Major Funds Wastewater Wastewater Internal Service Funds Transfers to fluid Amount Capital Projects $1,653,571 Capital Projects 596,646 Non -Major Gov't — Street Improvements 558,888 Solid Waste 470,751 Debt Service 382,800 Capital Projects 381,072 Transfers from the General Fund, from the Non -Major Governmental fund — Street Improvements, and from the Internal Service Funds to the Capital Projects Fund were to fund capital projects and vehicle replacements. Transfers from the Business -type Major Funds (Electric, Water, and Wastewater) to the Non -Major Governmental fund — Street Improvements were for bond savings costs related to the issue of certificates of obligation rather than revenue bonds. The savings fund street maintenance operations in the Street Improvements Fund. Transfers from the Wastewater Fund to the Solid Waste Fund were related to the transfer of land. Transfers from the Wastewater Fund to the Debt Service Fund were for related drainage debt service payments. F. Leases Leases payable represent the remaining principal amounts payable under lease purchase agreements for the acquisition of equipment through the General Fund and Tech Services funds. These leases are recorded as capital leases. Remaining requirements, including interest, under these leases are as follows: Year Payments 2016 $ 861,780 2017 861,780 2018 456,564 Total minimum lease payments $ 2,180,124 Less: amount representing interest 100,898 Present value of minimum future lease payments $ 2,079,226 The following schedule provides an analysis of the City's investments in equipment under capital lease arrangements as of September 30, 2015: Equipment $12,068,786 Less: Accumulated Depreciation (9,321,648) Total $ 2,747,138 52 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 G. Long -term debt Long -term liabilities transactions for the year ended September 30, 2015 are summarized as follows below and on the following pages: Balance at Balance at October 1, September 30, Due Within 2014 Increases Decreases 2015 One Year Governmental Activities: General obligation bonds $ 78,316,161 $ 36,110,000 $ 19,407,103 $ 95,019,058 $ 8,282,884 Certificates of obligation 41,570,000 7,420,000 7,400,000 41,590,000 5,260,000 Obligations under capital leases 1,102,864 1,793,040 816,678 2,079,226 807,310 Compensated absences payable 11,917,570 6,380,101 7,140,143 11,157,528 4,984,841 Claims payable 3,546,789 24,736,189 23,559,999 4,722,979 2,233,039 Municipal pension obligation 52,920,059 8,783,784 8,431,253 53,272,590 - Other post employment benefits 3,067,335 1,090,445 424,045 3,733,735 - Unamortized premium/(discounts) 3,593,057 3,214,914 768,118 6,039,853 904,061 Total governmental long -term liabilities $ 196,033,835 $ 89,528,473 $ 67,947,339 $ 217,614,969 $22,472,135 Balance at Balance at October 1, September 30, Due Within 2014 Increases Decreases 2015 One Year Business -type Activities: Revenue bonds $ 112,170,000 $ - $ 48,830,000 $ 63,340,000 $10,210,000 General obligation bonds 79,188,839 35,475,000 6,077,897 108,585,942 7,242,116 Certificates of obligation 290,640,000 85,595,000 16,860,000 359,375,000 17,565,000 Compensated absences payable 2,517,392 2,300,806 2,040,329 2,777,869 2,307,204 Municipal pension obligation 26,455,128 4,510,486 4,127,543 26,838,071 - Other post employment benefits 1,585,922 626,194 247,027 1,965,089 - Landfill closure /post - closure 6,419,592 394,194 - 6,813,786 - Unamortized premium/(discounts) 23,263,019 8,465,534 4,164,447 27,564,106 4,095,634 Total business -type activities 542,239,892 137,367,214 82,347,243 597,259,863 41,419,954 Total long -term liabilities $ 738,273,727 $ 226,895,687 $ 150,294,582 $ 814,874,832 $ 63,892,089 [The beginning balances at October 1, 2014 include a prior period adjustment for municipal pension obligation of $48,248,986 in governmental activities and $23,726,660 in business -type activities. See footnotes I.F. and V.H. for more information.] For Internal Service funds, long -term liabilities are included as part of the above totals for governmental activities. Compensated absences payables and municipal pension obligations balances and payments are based on the assignment of an employee within a fund. Other postemployment benefits are liquidated from the Health Insurance internal service fund, with the retiree subsidy amounts paid predominantly by the General Fund. Claims payable represents an estimate of self - insured claims liability outstanding in the Health Insurance and Risk Retention internal service funds. 53 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 General bonded debt - General bonded debt at September 30, 2015, is comprised of the following: Original Gross Amount General Obligation Bonds and Interest Rate Amount of Outstanding at Certificates of Obligation Debt ( %) Issue Date Final Maturity Issue September 30, 2015 General obligation 4.25 to 5.0 2006 2026 $ 3,695,000 $ 175,000 General obligation 4.0 to 5.0 2007 2026 15,925,000 1,445,000 General obligation refunding 4.0 to 5.25 2007 2022 26,025,000 17,580,000 General obligation 4.0 to 4.75 2008 2028 7,300,000 5,490,000 General obligation refunding 3.0 to 5.0 2009 2016 6,695,000 320,000 General obligation 3.8 to 4.3 2010 2030 4,115,000 3,420,000 General obligation refunding 2.0 to 4.75 2011 2031 2,225,000 1,930,000 General obligation refunding 2.0 to 5.0 2012 2032 14,358,739 12,616,678 General obligation refunding 2.0 to 4.0 2013 2033 10,221,023 9,722,380 General obligation refunding 2.0 to 3.5 2014 2034 7,165,000 6,210,000 General obligation refunding 3.0 to 5.0 2015 2035 36,110,000 36,110,000 Total general obligation bonds 133,834,762 95,019,058 Certificates of obligation 4.0 to 4.75 2006 2026 $ 6,509,950 $ 320,000 Certificates of obligation 4.5 to 5.0 2007 2027 8,855,000 3,525,000 Certificates of obligation 4.0 to 5.0 2007A 2028 7,065,000 5,310,000 Certificates of obligation 3.0 to 4.625 2008 2028 7,865,000 3,100,000 Certificates of obligation 2.0 to 5.0 2010 2030 2,790,000 890,000 Certificates of obligation 2.0 to 5.0 2011 2031 3,455,000 1,545,000 Certificates of obligation 2.0 to 5.0 2012 2032 4,490,000 2,435,000 Certificates of obligation 3.0 to 4.0 2013 2033 10,805,000 9,040,000 Certificates of obligation 2.0 to 5.0 2014 2039 8,635,000 8,005,000 Certificates of obligation 2.0 to 5.0 2015 2034 7,420,000 7,420,000 Total certificates of obligation 67,889,950 41,590,000 Total general bonded debt $ 201,724,712 $ 136,609,058 [These amounts do not include net unamortized premiums/ (discounts) of $6,039,853 nor net deferred gain/ (loss) on refunding of ($2,037,157).] Proceeds of general obligation bonded debt are restricted to the uses for which they were approved in the bond elections or, in the case of a refunding issuance, to the uses for which the certificates of obligation were originally issued. The City Charter expressly prohibits the use of bond proceeds to fund operating expenses. The general obligations are collateralized by the full faith and credit of the City and, primarily, payable from property taxes. In prior years, the City defeased general obligation bonds and certificates of obligation by placing the proceeds of new debt in an irrevocable trust to provide for all future debt service payments on the old bonds. Accordingly, the trust account assets and liabilities for the defeased debt are not included in the City's financial statements. On September 30, 2015 $12,090,000 of general obligation bonds and $4,165,000 of certificates of obligation considered defeased are still outstanding. In May 2015, the City issued $93,015,000 ($85,595,000 of which is included as part of business type activities) in certificates of obligation. The debt was issued to pay the costs of various capital improvements 54 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 in the Capital Projects Fund ($7,420,000), Electric ($65,715,000), Water ($2,750,000), Wastewater ($7,625,000), and Solid Waste ($9,505,000). In May 2015, the City issued $37,640,000 ($1,530,000 of which is included as part of business -type activities) of general obligation refunding and improvement bonds. The refunding portion of the bonds' reacquisition price exceeded the net carrying amount of the old debt by $1,051,337 ($70,016 of which is reported as a loss in business -type activities'). This amount is being amortized over the remaining life of the refunded debt, which is shorter than the life of the new debt issued. This advance refunding was undertaken to reduce total debt service payments over the next 13 years by $1,733,491 and resulted in a net present value savings of $1,503,710. The improvement portion of the bonds was issued to pay the costs of various capital improvements in the Capital Projects Fund for $21,820,000. In August 2015, the City issued $33,945,000 (all of which is included as part of business -type activities) of general obligation refunding bonds. The reacquisition price exceeded the net carrying amount of the old debt by $1,233,160 all of which is reported in business -type activities. This amount is being amortized over the remaining life of the refunded debt, which is shorter than the life of the new debt issued. This advance refunding was undertaken to reduce total debt service payments over the next 11 years by $7,813,090 and resulted in a net present value savings of $3,704,322. A portion of the bonds was issued to refinance a portion of the City's contractual obligations to the Texas Municipal Power Agency (the "TMPA ") under a power sales contract for $2,955,000. Business -type revenue bonds — Revenue bond debt at September 30, 2015, is comprised of the following issues: Gross Amount Interest Rate Original Amount Outstanding at Revenue Bonds ( %) Issue Date Final Maturity of Issue September 30, 2015 Utility system refunding 3.0 to 5.0 2005 2017 $ 53,845,000 $ 5,705,000 Utility system refunding 4.5 to 5.0 2006 2017 8,515,000 815,000 Utility system 4.0 to 4.25 2007 2027 16,740,000 11,785,000 Utility system refunding 4.0 to 4.25 2007 2030 41,795,000 33,690,000 Utility system 3.5 to 5.0 2008 2028 15,290,000 11,345,000 Total revenue bonds $ 136,185,000 $ 63,340,000 [These amounts do not include net unamortized premiums/ (discounts) of $189,111 nor net deferred gain/ (loss) on refunding of ($1,025,850).] The revenue bonds are collateralized by the revenue of the Denton utility system funds (System) and the various special funds established by the bond ordinance. The ordinance provides that the revenue of the System is to be used first to pay operating and maintenance expenses of the System and second to establish and maintain the revenue bond funds. Any remaining revenues may then be used for any lawful purpose. The ordinance also contains provisions, which among other items restrict the issuance of additional revenue bonds unless the special funds noted above contain the required amounts and certain financial ratios are met. Management believes the City is in compliance with all significant requirements. Assets in these accounts consist of cash and U.S. government securities. Following is a summary of the various net asset balances in the funds required by the bond ordinance to be restricted for debt service. Interest and sinking fund $12,388,398 Reserve fund 5,420,547 Total net assets restricted for debt service $17,808,945 55 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 In prior years, the City defeased revenue bonds by placing the proceeds of new bonds in an irrevocable trust to provide for all future debt service payments on the old bonds. Accordingly, the trust account assets and liabilities for the defeased bonds are not included in the City's financial statements. On September 30, 2015, $37,260,000 of revenue bonds considered defeased are still outstanding. Business -type general obligation bonds and certificates of obligation - General obligation bonds and certificates of obligation issued for electric, water, wastewater, solid waste, and airport funds at September 30, 2015, is comprised of the following: Gross Amount General Obligation Bonds and Interest Rate Original Amount Outstanding at Certificates of Obligation Debt ( %) Issue Date Final Maturity of Issue September 30, 2015 General obligation refunding General obligation refunding General obligation refunding General obligation refunding General obligation refunding General obligation refunding General obligation refunding General obligation refunding General obligation refunding Total general obligation bonds Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Certificates of obligation Total certificates of obligation Total business -type G.O. /C.O. bonds 4.0 to 5.25 3.0 to 5.0 3.0 to 5.0 2.0 to 4.75 2.0 to 5.0 2.0 to 4.0 3.0 to 5.0 3.0 to 5.0 4.0 to 5.0 4.0 to 4.75 4.5 to 5.0 4.0 to 5.0 2.0 to 5.0 2.0 to 5.0 2.0 to 5.0 2.0 to 5.0 3.0 to 4.0 2.0 to 5.0 2.0 to 5.0 2007 2009 2010 2011 2012 2013 2014A 2015 2015A 2006 2007 2008 2010 2010 2011 2012 2013 2014 2015 2022 2016 2022 2031 2032 2033 2039 2035 2026 2026 2027 2028 2030 2025 2031 2032 2033 2039 2034 $ 2,245,000 830,000 35,815,000 8,620,000 19,231,261 513,977 27,155,000 1,530,000 33,945,000 129,885,238 $ 6,155,050 2,590,000 2,820,000 58,295,000 58,820,000 28,645,000 40,185,000 52,715,000 80,545,000 85,595,000 416,365,050 $ 546,250,288 $ 2,350,000 90,000 22,735,000 3,165,000 17,458,322 492,620 26,820,000 1,530,000 33,945,000 108,585,942 $ 130,000 965,000 755,000 45,160,000 43,645,000 22,150,000 33,965,000 48,130,000 78,880,000 85,595,000 359,375,000 $ 467,960,942 [These amounts do not include net unamortized premiums/ (discounts) of $27,374,995 nor net deferred gain/ (loss) on refunding of ($2,926,959.] 56 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Schedule of long -term debt maturities Aggregate maturities of the long -term debt (principal and interest) for the years subsequent to September 30, 2015 are shown below: Governinental Activities Business -Type Activities General Obligation Fiscal Year Principal Interest 2016 $ 8,282,884 $ 3,699,369 2017 8,341,338 3,390,601 2018 8,174,560 3,054,049 2019 7,793,269 2,699,788 2020 7,361,312 2,355,979 2021 -2025 29,920,695 7,418,876 2026 -2030 15,590,000 3,132,419 2031 -2035 9,555,000 877,428 Total $ 95,019,058 $ 26,628,509 Business -Type Activities Certificates of Obligation Principal General Obligation $ 5,260,000 Fiscal Year Principal Interest 2016 $ 7,242,116 $ 4,681,931 2017 12,263,662 4,404,094 2018 13,275,440 3,801,240 2019 15,751,730 3,107,676 2020 16,513,688 2,370,417 2021 -2025 43,044,306 3,461,096 2026 -2030 495,000 9,050 2031 -2035 - - 2036 -2040 2041 -2045 - Total $ 108,585,942 $ 21,835,504 Certificates of Obligation Principal Interest $ 5,260,000 $ 1,702,916 4,715,000 1,460,720 3,985,000 1,275,745 3,175,000 1,115,470 2,890,000 977,034 10,330,000 3,360,401 7,415,000 1,339,312 3,820,000 282,985 $ 41,590,000 $ 11,514,583 Certificates of Obligation Principal Interest $ 17,565,000 $ 15,391,788 17,535,000 14,096,764 17,150,000 13,322,677 17,305,000 12,522,902 17,485,000 11,703,914 89,265,000 46,599,935 77,735,000 29,012,142 48,165,000 15262,524 27,175,000 8,812,700 29,995,000 2,831,100 $ 359,375,000 $ 169,556,446 Leases Total Principal Interest $ 807,310 $ 54,470 826,566 35,214 445,350 11,214 $ 2,079,226 $ 100,898 Revenue Principal Interest $ 10,210,000 $ 2,551,456 4,735,000 2,185,150 4,350,000 1,979,025 4,550,000 1,795,844 4,740,000 1,607,838 17,095,000 5,791,206 17,660,000 1,670,256 $ 63,340,000 $17,580,775 Principal $ 14,350,194 13,882,904 12,604,910 10,968,269 10,251,312 40,250,695 23,005,000 13,375,000 $138,688,284 Principal $ 35,017,116 34,533,662 34,775,440 37,606,730 38,738,688 149,404,306 95,890,000 48,165,000 27,175,000 29,995,000 $ 531,300,942 Interest $ 5,456,755 4,886,535 4,341,008 3,815,258 3,333,013 10,779,277 4,471,731 1,160,413 $ 38243,990 Total Interest $ 22,625,175 20,686,008 19,102,942 17,426,422 15,682,169 55,852,237 30,691,448 15,262,524 8,812,700 2,831,100 $ 208,972,725 [These amounts do not include net unamortized premiums/ (discounts) of $33,603,959 nor net deferred gain/ (loss) on refunding of ($5,989,966).] Bonds authorized and unissued General obligation bonds authorized but unissued as of September 30, 2015 amounted to $87,725,000. When issued, the proceeds will be allocated to the applicable street, public safety, drainage, and parks projects. H. Landfill closure and post - closure cost State and federal laws and regulations require the City to place a final cover on its Mayhill Road landfill site upon closure and to perform certain maintenance and monitoring functions at the site for thirty years after closure. Although closure and post - closure care costs will be paid only upon anticipated closure, the City reports a portion of these costs as an operating expense in each period based on landfill capacity used as of each balance sheet date. Based on a model created by a 2009 engineering study, total landfill closure and post - closure cost increased from $15,932,408 at September 30, 2014 to $16,314,785 at September 30, 2015. The $6,813,786 reported as landfill closure and post - closure care liability is a $394,194 increase from the $6,419,592 liability reported on September 30, 2014. This liability represents the cumulative amount incurred to date based on the use of 41.8% of the estimated capacity of the entire landfill at September 30, 2015. Based on this estimate, the remaining potential estimated liability for closure and post - closure care of the entire landfill is $9,500,999. The City will recognize the remaining estimated cost of closure and post - closure care as the remaining capacity is filled. These amounts are based on what it would cost to perform closure and post - closure care in 2015. Actual cost may fluctuate due to inflation, changes in technology, or changes in regulations. The landfill has a remaining life of 34 years, and the City expects to close the landfill in fiscal year 2049. 57 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 The solid waste fund has provided for a reservation and designation of cash and investments of $6,927,921 at September 30, 2015, and anticipates increasing the reserve in future periods as the closure and post - closure activities are carried out. V. OTHER INFORMATION A. Pension plans Texas Municipal Retirement Plan Plan description The City participates as one of 860 plans in the nontraditional, joint contributory, hybrid defined benefit pension plan administered by the Texas Municipal Retirement System (TMRS). TMRS is an agency created by the State of Texas and administered in accordance with the TMRS Act, Subtitle G, Title 8, Texas Government Code (the TMRS Act) as an agent multiple - employer retirement system for municipal employees in the State of Texas. The TMRS Act places the general administration and management of the System with a six - member board of Trustees. Although the Governor, with the advice and consent of the Senate, appoints the Board, TMRS is not fiscally dependent on the State of Texas. TMRS's defined benefit pension plan is a tax - qualified plan under Section 401(a) of the Internal Revenue Code. TMRS issues a publicly- available comprehensive annual financial report (CAFR) obtainable at v✓v✓v✓..xtrrs.c1x�. All eligible employees of the city are required to participate in TMRS. Benefits provided TMRS provides retirement, disability, and death benefits. Benefit provisions are adopted by the governing body of the City, within the options available in the state statutes governing TMRS. At retirement, the benefit is calculated as if the sum of the employee's contributions, with interest, and the city- financed monetary credits with interest were used to purchase an annuity. Members may choose to receive their retirement benefit in one of seven payments options. Members may also choose to receive a portion of their benefit as a Partial Lump Sum Distribution in an amount equal to 12, 24, or 36 monthly payments, which cannot exceed 75% of the member's deposits and interest. At the inception of the plan, the city granted monetary credits for service rendered before the plan began (or prior service credits) of a theoretical amount at least equal to two times what would have been contributed by the employee, with interest (3% annual), prior to establishment of the plan. Monetary credits for service since the plan began (or current service credits) are a percent (200 %) of the employee's accumulated contributions. In addition, the City grants on annually repeating basis, another type of monetary credit referred to as an updated service credit. This monetary credit is determined by hypothetically recomputing the member's account balance by assuming the current member deposit rate of the City (7 %) has always been in effect. The computation also assumes the member's salary has always been the member's average salary — using a salary calculation based on the 36 -month period ending a year before the effective date of calculation. This hypothetical account balance is increased by 3% each year, and increased by the city match currently in effect (200 %). The resulting sum is then compared to the member's actual account balance increased by the actual city match and actual interest credited. If the hypothetical calculation exceeds the actual calculation, the member is granted a monetary credit (or Updated Service Credit) equal to the difference between the hypothetical calculation and the actual calculation times the percentage adopted. At retirement, the benefit is calculated as if the sum of the employee's accumulated contributions with interest and the city - financed monetary credits with interest were used to purchase an annuity. The plan provisions also include an annually repeating basis cost of living adjustments for retires equal to 70% of the change in the consumer price index. Members can retire at ages 60 and above with 5 or more years of service or with 20 years of service regardless of age. A member is vested after five years. 58 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Employees covered by benefit terms At the December 31, 2014 valuation and measurement date, the following employees were covered by the benefit terms: Inactive employees or beneficiaries currently receiving benefits 470 Inactive employees entitled to but not yet receiving benefits 382 Active employees 1,156 Total 2,008 Contributions The contribution rates for employees in TMRS are either 5 %, 6 %, or 7% of employee gross earnings, and the city matching percentages are either 100 %, 150 %, or 200 %, both as adopted by the City Council. Under the state law governing TMRS, the contribution rate for each city is determined annually by the actuary, using the Entry Age Normal (EAN) actuarial cost method. The actuarially determined rate is the estimated amount necessary to finance the cost of benefits earned by employees during the year, with an additional amount to finance any unfunded accrued liability. Employees for the City were required to contribute 7% of their annual gross earnings during the fiscal year. The contribution rates for the City were 18.36% and 17.76% in calendar years 2014 and 2015, respectively. The City's contributions to TMRS for the year ended September 30, 2015 were $13,514,646 and were equal to the required contributions. Net pension liability The City's Net Pension Liability (NPL) was measured as of December 31, 2014, and the Total Pension Liability (TPL) used to calculate the Net Pension Liability was determined by an actuarial valuation as of that date. Actuarial assumptions The Total Pension Liability in the December 31, 2014 actuarial valuation was determined using the following actuarial assumptions: Inflation 3.0% per year Overall payroll growth 3.0% per year Investment Rate of Return 7.0 %, net of pension plan investment expense, including inflation Salary increases were based on a service - related table. Mortality rates for active members, retirees, and beneficiaries were based on the gender - distinct RP2000 Combined Healthy Mortality Table, with male rates multiplied by 109% and female rates multiplied by 103 %. Based on the size of the City, rates are multiplied by a factor of 100 %. The rates are projected on a fully generational basis by scale BB to account for future mortality improvements. For disabled annuitants, the gender - distinct RP2000 Disabled Retiree Mortality Table is used, with slight adjustments. Actuarial assumptions used in the December 31, 2014, valuation were based on the results of actuarial experience studies. The experience study in TMRS was for the period January 1, 2006 through December 31, 2009, first used in the December 31, 2010 valuation. Healthy post - retirement mortality rates and annuity purchase rates were updated based on a Mortality Experience Investigation Study covering 2009 through 2011, and dated December 31, 2013. These assumptions were first used in the December 31, 2013 valuation, along with a change to the Entry Age Normal (EAN) actuarial cost method. Assumptions are reviewed annually. No additional changes were made for the 2014 valuation. The long -term expected rate of return on pension plan investments is 7.0 %. The pension plan's policy in regard to the allocation of invested assets is established and may be amended by the TMRS Board of Trustees. 59 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Plan assets are managed on a total return basis with an emphasis on both capital appreciation as well as the production of income, in order to satisfy the short-term and long -term funding needs of TMRS. The long -term expected rate of return on pension plan investments was determined using a building -block method in which best estimate ranges of expected future real rates of return (expected returns, net of pension plan investment expense and inflation) are developed for each major asset class. These ranges are combined to produce the long -term expected rate of return by weighting the expected future real rates of return by the target asset allocation percentage and by adding expected inflation. The target allocation and best estimates of arithmetic real rates of return for each major asset class are summarized in the following table: Asset Class Domestic Equity International Equity Core Fixed Income Non -Core Fixed Income Real Return Real Estate Absolute Return Private Equity Long -Term Expected Real Target Rate of Return Allocation (Arithmetic) 17.5% 4.80% 17.5% 6.05% 30.0% 1.50% 10.0% 3.50% 5.0% 1.75% 10.0% 5.25% 5.0% 4.25% 5.0% 8.50% Total 100.0% Discount rate The discount rate used to measure the Total Pension Liability was 7.0 %. The projection of cash flows used to determine the discount rate assumed that employee and employer contributions will be made at the rates specified in statute. Based on that assumption, the pension plan's Fiduciary Net Position was projected to be available to make all projected future benefit payments of current active and inactive employees. Therefore, the long -term expected rate of return on pension plan investments was applied to all periods of projected benefit payments to determine the Total Pension Liability. 60 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Changes in the net pension liability Balance at 12/31/2013 Changes for the year: Service cost Interest Change of benefit terms Difference between expected and actual experience Changes of assumptions Contributions - employer Contributions - employee Net investment income Benefit payments, including refunds of employee contributions Administrative expense Other changes Net changes Balance at 12/31/2014 Increase (Decrease) Total Pension Plan Fiduciary Net Pension Liability Net Position Liability (a) (b) (a) - (b) $ 360,116,261 $ 294,819,596 $ 65,296,665 10,667,694 - 10,667,694 25,182,941 - 25,182,941 (171,241) - (171,241) - 13,065,763 (13,065,763) - 4,991,415 (4,991,415) - 16,867,596 (16,867,596) (11,387,617) (11,387,617) - - (176,083) 176,083 - (14,477) 14,477 24,291,777 23,346,597 945,180 $ 384,408,038 $ 318,166,193 $ 66,241,845 Sensitivity of the net pension liability to changes in the discount rate The following presents the net pension liability of the City, calculated using the discount rate of 7.0 %, as well as what the City's net pension liability would be if it were calculated using a discount rate that is 1- percentage -point lower (6.0 %) or 1- percentage -point higher (8.0 %) than the current rate: 1% Decrease in Current 1% Increase in Discount Rate Discount Rate Discount Rate City's net pension liability $ 125,474,039 $ 66,241,845 $ 18,002,986 Pension plan fiduciary net position Detailed information about the pension plan's Fiduciary Net Position is available in a separately- issued TMRS financial report. That report may be obtained on the Internet at www.tmrs.com. Pension expense and deferred outflows of resources and deferred inflows of resources related to pensions For the year ended September 30, 2015, the City recognized pension expense of $11,132,798. This amount is included as part of personal services expenses. 61 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 At September 30, 2015, the City reported deferred outflows of resources and deferred inflows of resources related to TMRS pension from the following sources: Differences between projected and actual investment earnings Contributions subsequent to the measurement date Differences between expected and actual economic experience Total Deferred Outflows Deferred Inflows of Resources of Resources $ 3,015,821 9,839,888 $ 12,855,709 (137,676) $ (137,676) Deferred outflows of resources related to pensions resulting from contributions subsequent to the measurement date of $9,839,888 will be recognized as a reduction of the net pension liability for the measurement year ending December 31, 2015 and the City's fiscal year ending September 30, 2016. Other amounts reported as deferred outflows and inflows of resources related to pensions will be recognized in pension expense as follows: Measurement Year Ended December 31st 2015 $ 720,390 2016 720,390 2017 720,390 2018 720,391 2019 (3,416) Total $ 2,878,145 Pursuant to TMRS policy of conducting experience studies every four years, the TMRS Board at their July 31, 2015 meeting determined they would be changing certain actuarial assumptions including reducing the long -term expected rate of return from the current 7.00% to 6.75% and changing the inflation assumption from 3.0% to 2.5 %. Reduction of expected investment return and related discount rate will increase projected pension liabilities. Reducing the inflation assumption reduces liabilities as future annuity levels and future costs of living adjustments are not projected to be as large as originally projected. The actual impact on the City's valuation for December 31, 2015 is not known. Supplemental death benefit fund The City of Denton contributes to a cost - sharing multiple - employer defined benefit group -term life insurance plan known as the Supplemental Death Benefits Fund (SDBF). This is a separate trust administered by the TMRS Board of Trustees and is a voluntary program in which the City elected, by ordinance, to provide group term life insurance coverage to active and retired members. The City may terminate coverage under and discontinue participation in the SDBF by adopting an ordinance before November Is' of any year to be effective the following January I". Payments from this fund are similar to group term life insurance benefits, and are paid to the designated beneficiaries upon the receipt of an approved application for payment. The death benefit for active employees provides a lump -sum payment approximately equal to the employee's annual salary (calculated based on the employee's actual earnings, for the 12 -month period preceding the month of death). The death benefit for 62 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 retirees is considered an "other postemployment benefit" (OPEB) and is a fixed amount of $7,500. The obligations of this plan are payable only from the SDBF and are not an obligation of, or claim against, the TMRS Pension Trust Fund. Contributions are made monthly based on the covered payroll of employee members of the City. The contractually required contribution rate is determined by an annual actuarial valuation and is based on the mortality and service experience of all employees covered by the SDBF and the demographics specific to the workforce of the City. There is a one -year delay between the actuarial valuation that serves as the basis for the employer contribution rate and the calendar year when the rate goes into effect. The contributions to the SDBF are pooled for investment purposes with those of the Pension Trust Fund described above. The TMRS Act requires the Pension Trust Fund to allocate investment income to the SDBF on an annual basis. The funding policy of the plan is to assure adequate resources are available to meet all death benefit payments for the upcoming year; the intent is not to prefund retiree term life insurance during employees' entire careers. As such, contributions are utilized to fund active member deaths on a pay -as- you -go basis; any excess contributions and investment income over payments then become net assets available for OPEB. The City's contributions to the TMRS SDBF for the fiscal years ended September 30, 2013, 2014, and 2015, were $108,645, $118,782, and $133,686, respectively, which equaled the required contributions each year. Denton Firemen's Relief and Retirement Plan Plan description The City contributes to the retirement plan for firefighters in the Denton Fire Department known as the Denton Firemen's Relief and Retirement Fund (the Fund). The Fund is a single employer, contributory, defined benefit plan. The benefit provisions of the Fund are authorized by the Texas Local Fire Fighters' Retirement Act ( TLFFRA). TLFFRA provides the authority and procedure to amend benefit provisions. The plan is administered by the Board of Trustees of the Denton Firemen's Relief and Retirement Fund. The City does not have access to nor can it utilize assets within the retirement plan trust. The Fund issues a stand -alone report pursuant to GASB Statement No. 67, which may be obtained by writing the Denton Firemen's Relief and Retirement Fund at P.O. Box 2375, Denton, Texas 76202. See that report for all information about the plan fiduciary net position. Benefits provided Firefighters in the Denton Fire Department are covered by the Denton Firemen's Relief and Retirement Fund which provides service retirement, death, disability, and withdrawal benefits. These benefits fully vest after 20 years of credited service. Firefighters may retire at age 50 with 20 years of service. A partially- vested benefit is provided for firefighters who terminate employment with at least 10 but less than 20 years of service. If a terminated firefighter has a partially vested benefit, he may retire starting on the date he would have both completed 20 years of service if he had remained a Denton firefighter and attained age 50. As of the December 31, 2013 actuarial valuation date, the plan effective January 1, 2011 provided a monthly normal service retirement benefit, payable in a Joint and Two - Thirds to Spouse form of annuity, equal to 2.59% of Highest 36 -Month Average Salary for each year of service. A retiring firefighter who is at least age 52 with at least 22 years of service has the option to elect the Retroactive Deferred Retirement Option Plan ( RETRO DROP) which will provide a lump sum benefit and a reduced monthly benefit. The reduced monthly benefit is based on the service and Highest 36 -Month Average Salary as if he had terminated employment on his selected RETRO DROP benefit calculation date, which is no earlier than the later of the date he meets the age 52 and 22 years of service requirements and the date four years prior to the date he actually retires. Upon retirement, the member will receive, in addition to his monthly retirement benefit, a lump sum equal to the sum of (1) the amount of monthly contributions the member has made to the Fund after the RETRO DROP benefit calculation date plus (2) the total of the monthly retirement benefits the member would have received between the RETRO DROP benefit calculation date and the date he retired under the plan. There are no account balances. The lump sum is calculated at the time of retirement and distributed as soon as administratively possible. 63 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 There is no provision for automatic postretirement benefit increases. The Fund has the authority to provide, and has periodically in the past provided, ad hoc postretirement benefit increases. Employees covered by benefit terms In the December 31, 2013 actuarial valuation, the following numbers of members were covered by the Fund: Inactive employees or beneficiaries currently receiving benefits 81 Inactive employees entitled to but not yet receiving benefits 2 Active employees 169 Total 252 Contributions The contribution provisions of the Fund are authorized by TLFFRA. TLFFRA provides the authority and procedure to change the amount of contributions determined as a percentage of pay by each firefighter and a percentage of payroll by the City. The funding policy of the Denton Firemen's Relief and Retirement Fund requires contributions equal to 12.6% of pay by the firefighters, the rate elected by the firefighters according to TLFFRA. The City currently contributes according to a City ordinance the same percentage of payroll that the City contributes to the Texas Municipal Retirement System for other employees each calendar year. The City contribution rate was 18.53% in calendar year 2014 and 17.94% in calendar year 2015. The December 31, 2013 actuarial valuation includes the assumption that the city contribution rate will average 17.0% over the UAAL amortization period. The costs of administering the plan are paid from the Fund assets. The City's contributions to the Fund for the year ended September 30, 2015 were $2,537,557. Ultimately, the funding policy also depends upon the total return of the Fund's assets, which varies from year to year. Investment policy decisions are established and maintained by the board of trustees. The board selects investments and employs investment managers with the advice of their investment consultant who is completely independent of the investment managers. For the calendar year ending December 31, 2014, the money- weighted rate of return on pension plan investments was 6.63 %. This measurement of the investment performance is net of investment - related expenses, reflecting the effect of the timing of the contributions received and the benefits paid during the year. While the contribution requirements are not actuarially determined, state law requires that each change in plan benefits adopted by the Fund must first be approved by an eligible actuary, certifying the contribution commitment by the firefighters and the assumed city contribution rate together provide an adequate contribution arrangement. Using the entry age actuarial cost method, the plan's normal cost contribution rate is determined as a percentage of payroll. The excess of the total contribution rate over the normal cost contribution rate is used to amortize the plan's unfunded actuarial accrued liability (UAAL). The number of years needed to amortize the plan's UAAL is actuarially determined using an open, level percentage of payroll method. Net pension liability The City of Denton's net pension liability was measured as of December 31, 2014, and the total pension liability used to calculate the net pension liability was determined by an actuarial valuation as of December 31, 2013 and rolled forward to December 31, 2014. 64 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Actuarial assumptions The total pension liability in the December 31, 2013 actuarial valuation was determined using the following actuarial assumptions, applied to all periods included in the measurement: Inflation 3.25% per year Overall payroll growth 3.25% per year, plus promotion, step and longevity increases that vary by service Investment Rate of Return 7.0 %, net of pension plan investment expense, including inflation Mortality rates were based on the RP -2000 Combined Healthy Mortality Tables for males and for females (sex distinct) projected to 2024 by scale AA. The long -term expected rate of return on pension plan investments is reviewed for each biennial actuarial valuation and was determined using a building -block method in which expected future net real rates of return (expected returns, net of pension plan investment expense and inflation) are developed for each major asset class. These components are combined to produce the long -term expected rate of return by weighting the expected future net real rates of return by the target asset allocation percentage (currently resulting in 4.24 %) and by adding expected inflation (3.25 %). In addition, the final 7.00% assumption was selected by "rounding down" and thereby reflects a reduction of 0.49% for adverse deviation. The target allocation and expected arithmetic net real rates of return for each major asset class are summarized in the following table: Discount rate The discount rate used to measure the total pension liability was 7 %. No projection of cash flows was used to determine the discount rate because the December 31, 2013 actuarial valuation showed that expected contributions would pay the normal cost and amortize the unfunded actuarial accrued liability (UAAL) in 24 years. That UAAL was based on an actuarial value of assets that was $4.3 million less than the plan fiduciary net position as of December 31, 2013. Because of the 24 -year amortization period of the UAAL with the lower value of assets, the pension plan's fiduciary net position is expected to be available to make all projected future benefit payments of current active and inactive members. Therefore, the long -term expected rate of return on pension plan investments of 7% was applied to all periods of projected benefit payments as the discount rate to determine the total pension liability. 65 Long -Term Expected Real Target Rate of Return Asset Class Allocation (Arithmetic) Equities Large Cap Domestic 40.0% 5.50% Small/Mid Cap Domestic 10.0% 6.00% International Developed 10.0% 6.00% Alternatives Master Limited Partnerships 6.0% 7.50% Real Estate 4.0% 3.50% Fixed Income 25.0% 1.00% Cash 5.0% 0.00% Total 100.0% Discount rate The discount rate used to measure the total pension liability was 7 %. No projection of cash flows was used to determine the discount rate because the December 31, 2013 actuarial valuation showed that expected contributions would pay the normal cost and amortize the unfunded actuarial accrued liability (UAAL) in 24 years. That UAAL was based on an actuarial value of assets that was $4.3 million less than the plan fiduciary net position as of December 31, 2013. Because of the 24 -year amortization period of the UAAL with the lower value of assets, the pension plan's fiduciary net position is expected to be available to make all projected future benefit payments of current active and inactive members. Therefore, the long -term expected rate of return on pension plan investments of 7% was applied to all periods of projected benefit payments as the discount rate to determine the total pension liability. 65 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Changes in the net pension liability Balance at 12/31/2014 Changes for the year: Service cost Interest Change of benefit terms Difference between expected and actual experience Changes of assumptions Contributions - employer Contributions - employee Net investment income Benefit payments, including refunds of employee contributions Administrative expense Other changes Net changes Balance at 12/31/2014 Increase (Decrease) Total Pension Plan Fiduciary Net Pension Liability Net Position Liability (a) (b) (a) - (b) $ 80,490,694 $ 66,412,172 $ 14,078,522 2,747,253 - 2,747,253 5,685,396 - 5,685,396 - 2,566,875 (2,566,875) - 1,745,419 (1,745,419) - 4,411,066 (4,411,066) (4,036,009) (4,036,009) - - (81,005) 81,005 4,396,640 4,606,346 (209,706) $ 84,887,334 $ 71,018,518 $ 13,868,816 Sensitivity of the net pension liability to changes in the discount rate The following presents the net pension liability of the City of Denton, calculated using the discount rate of 7 %, as well as what the city's net pension liability would be if it were calculated using a discount rate that is 1- percentage -point lower (6 %) or 1- percentage -point higher (8 %) than the current rate: 1% Decrease in Current 1% Increase in Discount Rate Discount Rate Discount Rate City's net pension liability $ 24,601,369 $ 13,868,816 $ 4,825,492 Pension plan fiduciary net position The plan fiduciary net position reported above is the same as reported by the Fund. Detailed information about the plan fiduciary net position is available in the Fund's separately issued audited financial statements, which are reported using the economic resources measurement focus and the accrual basis of accounting in conformity with accounting principles generally accepted in the United States of America. Revenues are recorded when earned, and expenses are recorded when a liability is incurred, regardless of the timing of the related cash flows. Investments are reported at fair value, the price that would be recognized to sell an asset in an orderly transaction between market participants at the measurement date. Pension expense and deferred outflows of resources and deferred inflows of resources related to pensions For the year ended September 30, 2015, the City recognized pension expense of $2,161,472. This amount is included as part of personal services expenses. 66 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 At September 30, 2015, the City reported deferred outflows of resources and deferred inflows of resources related to the Fund from the following sources: Differences between projected and actual investment earnings Contributions subsequent to the measurement date Differences between expected and actual economic experience Deferred Outflows Deferred Inflows of Resources of Resources $ 195,697 1,846,981 Total $ 2,042,678 Deferred outflows of resources related to pensions resulting from contributions subsequent to the measurement date of $1,846,981 will be recognized as a reduction of the net pension liability for the measurement year ending December 31, 2015 and the City's fiscal year ending September 30, 2016. Other amounts reported as deferred outflows and inflows of resources related to pensions will be recognized in pension expense as follows: Measurement Year Ended December 31st 2015 2016 2017 2018 Total $ 48,924 48,924 48,924 48,925 $ 195,697 B. Post - employment benefits other than pensions (OPEB) The cost of post - employment healthcare benefits, from an accrual accounting perspective, similar to the cost of pension benefits, should be associated with the periods in which the cost occurs, rather than in the future year when it will be paid. According to the requirements of GASB Statement No. 45 for the fiscal year ended September 30, 2015, the City recognizes the cost of post - employment healthcare in the year the employee services are received, reports the accumulated liability from prior years, and provides information useful in assessing potential demands on the City's future cash flows. Recognition of the liability accumulated from prior years will be amortized over 30 years, the first period commencing with the fiscal year ending September 30, 2008. Plan description The City provides post - employment medical care (OPEB) for retired employees through a single - employer defined benefit medical plan. The plan provides medical benefits for eligible retirees, their spouses and dependents though the City's group health insurance plans, which covers both active and retired members. The benefits, benefit levels, and contribution rates are approved annually by the City management as part of the budget process. Any changes in rate subsidies for retirees are approved by the City Council. Since an irrevocable trust has not been established, the plan is not accounted for as a trust fund. The plan does not issue a separate financial report. 67 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Benefits provided The City provides post - employment medical, dental, and vision care benefits to its retirees. To be eligible for benefits, an employee must qualify for retirement under the Texas Municipal Retirement System or the Denton Firemen's Relief and Retirement Plan. Retirees must make a one -time irrevocable decision to choose benefits at the time of retirement, after that their eligibility for the benefits ceases. All medical care benefits are provided through the City's self - insured health plan. The benefit levels are the same as those afforded to active employees. Funding policy The plan premium rates are determined annually by City management and approved by the City Council as part of the annual budget. The retiree's contribution is the full amount of the actuarially determined blended premium rate less a subsidy dependent upon years of service at retirement. By providing retirees with access to the City's healthcare plans based on the same rates it charges to active employees, the City is in effect providing a subsidy to retirees. This implied subsidy exists because, on average, retiree health care costs are higher than active employee healthcare costs. By the City not contributing anything toward this plan in advance, the City employs a pay -as- you -go method through paying the higher rate for active employees each year. The City contributes $20 per month for each five -year increment of service, up to $100 per month, toward the cost of retiree coverage. The full cost for dental and vision is paid by the retiree. Retirees are required to enroll in Medicare Part B once eligible (age 65) and are moved into a fully- insured Medicare Supplement plan at that time. The same City contribution level applies to the supplement. The City's GASB Statement No. 45 liability was discussed at length with the Audit/Finance Committee and the City Council. At the conclusion of these discussions, the City Council concurred with the staff recommendation to fund the City's OPEB costs on a pay -as- you -go basis. This basis has been recommended since 1) this provides the lowest cost approach, 2) the ARC is relatively small in comparison to the City's overall budget, and 3) the pay -as- you -go cost is not forecast to exceed the ARC until approximately the year 203 1. This approach will be reevaluated periodically. Annual OPEB costs and Net OPEB obligation The City's annual other post - employment benefit (OPEB) cost is calculated based on the annual required contribution of the City (ARC), an amount actuarially determined in accordance with the parameters of GASB Statement 45. The ARC represents a level of accrual that, if paid on an ongoing basis, is projected to cover normal cost each year and to amortize any unfunded actuarial liabilities over a period not to exceed thirty years. The City's annual OPEB cost for the current year and the related information are as follows at September 30, 2015: Annual required contribution $ 1,821,243 Interest on prior year net OPEB obligation 209,397 Adjustment to annual required contribution (314,001) Annual OPEB cost 1,716,639 Contributions made (671,072) Increase in net OPEB obligation 1,045,567 Net OPEB obligation - beginning of year 4,653,257 Net OPEB obligation - end of year $ 5,698,824 Percentage of OPEB costs contributed 39.1% 68 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Funded status and funding progress The funded status of the plan as of the actuarial measurement date of December 31, 2013 was as follows: Actuarial accrued liability $ 13,715,238 Actuarial value of plan assets - Unfunded actuarial accrued liability $ 13,715,238 Funded ratio 0.0% Covered payroll $ 79,692,115 Unfunded actuarial accrued liability as a percentage of covered payroll 17.2% Three -Year Trend Information for OPEB Funding Year ending Annual OPEB costs Actual contributions Percent contributed Net OPEB obligation 9/30/2015 9/30/2014 9/30/2013 $ 1,716,639 $ 1,735,204 $ 1,519,439 $ 671,072 $ 909,288 $ 898,583 39.1% 52.4% 59.1% $ 5,698,824 $ 4,653,257 $ 3,827,341 The schedule of funding progress, presented as "Required Supplementary Information" (Exhibit XIII) following the notes to the financial statements, presents multi -year trend information about whether the actuarial value of plan assets is increasing or decreasing over time relative to the actuarial accrued liability of benefits. Actuarial valuations involve estimates of the value of reported amounts and assumptions about the probability of events in the future. Amounts determined regarding the status of the plan and the annual required contributions of the employer are subject to continual revision as actual results are compared to past expectations and new estimates are made about the future. Actuarial methods and assumptions The Projected Unit Credit actuarial cost method is used to calculate the GASB ARC for the City's retiree health care plan. Using the plan benefits, the present health premiums and a set of actuarial assumptions, the anticipated future payments are projected. The projected unit credit method then provides for a systematic recognition of the cost of these anticipated payments. The yearly ARC is computed to cover the cost of benefits being earned by covered members as well as to amortize a portion of the unfunded accrued liability. Projections of benefits are based on the substantive plan (the plan understood by the employer and plan members) and include the type of benefits in force at the valuation date and the pattern of sharing benefits between the City and the plan members at that point. Actuarial calculations reflect a long -term perspective and employ methods and assumptions that are designed to reduce short-term volatility in actuarial accrued liabilities and the actuarial value of assets. Significant method and assumptions used for this fiscal year valuation as shown on the following page were as follows: 69 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Actuarial cost method Amortization method Amortization period for ARC Asset valuation method Investment rate of return Includes inflation at Payroll growth Healthcare inflation rate Medical reimbursements Actuarial Assumptions 12/31/13 Projected unit credit Level dollar, closed 24 years N/A 4.5 %, net of expenses 3.0% 3.0% Initial rate of 7.25% declining to an ultimate rate of 4.5% after 11 years The federal government may provide the city subsidy per the Medicare Part D Prescription Drug Subsidy Program for providing healthcare for Medicare eligible employees. As the City does not participate in these subsidies, any current and future year subsidies are not recognized as a reduction to the actuarial accrued liability. C. Deferred compensation plan The City offers its employees a deferred compensation plan created in accordance with Internal Revenue Code Section 457. For the calendar 2015 year, the plan, available to all permanent City employees, permitted them to defer, until future years, up to $18,000. Employees who are age 50 or older may contribute an amount not to exceed $24,000. Employees who are within three years of retirement eligibility may elect to participate in a catch -up provision allowed by Section 457, which has an annual maximum contribution amount of $36,000. The withdrawal of deferred compensation funds is only available to employees by loan, termination, until termination, retirement, death, or unforeseeable emergency. All amounts of compensation deferred under the plan, all property and rights purchased with those amounts, and all income attributable to those amounts, property or rights are, until paid or made available to the employee or other beneficiary, solely the property and rights of the employees. Accordingly, the assets and associated liability of the plan are not included in the City's financial statements. It is the opinion of the City's legal counsel that the City has no liability for losses under the plan. 70 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 D. Self- insurance plan The City has established a self - insurance plan for liability and workers' compensation claims in the Risk Retention Fund. Accrued claims payable include provisions for claims reported and claims incurred but not reported. The provision for reported claims is determined by estimating the amount which will ultimately be paid for each claimant. The provision for claims incurred but not yet reported is estimated based on actuarial studies. It is the policy of the City of Denton not to purchase commercial insurance for workers' compensation claims or general liability. Commercial liability insurance coverage is purchased for airport operations, emergency medical services, take -home vehicles, and employee theft and dishonesty. Additionally, excess insurance is purchased for general liability, auto liability, public officials, and workers' compensation exposures. The City reports liabilities when it is probable that a loss has occurred and the amount of that loss can be reasonably estimated. Liabilities include an amount for claims that have been incurred but not reported. Because actual claim liabilities depend on such complex factors as inflation, changes in legal doctrines, and damage awards, the process used in computing claims liability does not necessarily result in an exact amount. In January 2008, the City started a self - insured group employee health insurance plan. Claims are paid from the Health Insurance Fund, which has an annually negotiated stop loss provision. The City's costs associated with the self - insurance plans are interfund transactions. Accordingly, they are treated as operating revenues of the Internal Service Risk Retention Fund and Health Insurance Fund and operating expenditures (expenses) of the other funds and employee payroll deductions. Claims liabilities are re- evaluated periodically to take into consideration settlement of claims, new claims and other factors. As of September 30, 2015 the estimated value of these liabilities was $4,722,979. Changes in balances of claims liabilities during fiscal years 2015 and 2014 were as follows: Workers' Compensation 2015 2014 Claims Liability Claims and Beginning of Change in Fiscal Year Estimates $ 1,957,880 1,604,394 General Liability 2015 $ 523,200 2014 542,038 Health Insurance 2015 $ 1,065,709 2014 1,532,679 $ 884,664 869,473 $ 279,965 276,056 $ 23,571,560 17,516,173 Claims P ayments $ 423,560 515,987 $ 279,371 294,894 $ 22,857,068 17,983,143 Claims Liability End of Fiscal Year 2,418,984 1,957,880 523,794 523,200 1,780,201 1,065,709 On September 30, 2015, the City of Denton held additional amounts in unrestricted net assets of $3,441,408 in the Risk Retention Fund and $4,125,020 in the Health Insurance Fund for payment of claims. There were no significant reductions in insurance coverage from coverage in the prior year, and the amount of settlements did not exceed insurance coverage in the current year or in any of the past three fiscal years. 71 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 E. Commitments and contingencies Agreement with TMPA In 1976, the City, along with the cities of Bryan, Greenville, and Garland, Texas (the Cities) entered into a Power Sales Contract with the Texas Municipal Power Agency (TMPA). TMPA was created through concurrent ordinances of the Cities and is governed by a Board of Directors consisting of eight members, two appointed by the governing body of each city. Under the terms of the agreement, TMPA agreed to construct or acquire electric generating plants to supply energy and power to the Cities for a period of not less than 35 years. The Cities in turn agreed to purchase all future power and energy requirements in excess of the amounts generated by their systems from TMPA at prices intended to cover operating costs and retirement of debt. In the event that revenues are insufficient to cover all costs and retire the outstanding debt, each of the cities has guaranteed a portion of the unpaid debt based, generally, upon its pro rata share of the energy delivered to consumers in the prior operating year. TMPA, a municipal corporation, is governed by a Board of Directors consisting of eight members. The governing body of each of the four Cities appoints two members to the Board. An affirmative vote of five Directors, plus a weighted majority vote based on the respective energy usage of the Cities, is required for major decisions. The City pays TMPA a pro -rated monthly charge based on the City's contractual portion of TMPA's annual fixed operating costs and debt service payments, which is currently 21.3 %. As of September 30, 2015, total TMPA long -term debt outstanding was approximately $580,191,000. The City's portion of this debt due to contractual obligations with TMPA is $69,473,526 over the next three years ($51,543,726 of principal and $17,929,800 in related interest payments). In December 2009, the City and the other Member Cities entered into a Global Compromise Settlement Agreement. As part of the settlement, the Member Cities agreed to issue debt to provide for TMPA's scrubber refurbishment project and to refinance TMPA's 2003, 2004, and 2004A Subordinate Lien Bonds. In August 2015, the City paid $13,417,133 ($3,417,133 in General Obligation Refunding Bond proceeds and $10,000,000 in cash from existing funds) to TMPA to refinance the City's current year share of the eligible portion of the TMPA Series 1993 Capital Appreciation Bonds (CABS). In the opinion of management, the possibility of a material payment in the near future under this agreement is remote in that TMPA is generating operating profits, and assets exceed liabilities. TMPA operates a 462 - megawatt, coal -fired generating plant. In 1996, TMPA switched to an external source of coal to reduce costs. Should TMPA be dissolved, each city would be entitled to an undivided interest in the property. 72 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 Selected financial statement information of TMPA is as follows: Financial statements for TMPA are available from the TMPA web site www.texas .gb�g. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement with the City of Dallas During 1985, the City entered into an agreement with the City of Dallas that provided for the purchase of a minimum of 500,000 gallons /day of untreated water from the City of Dallas from Lake Lewisville. This contract was effective for 30 years and expired in the current fiscal year. The cost of water purchased under this agreement during fiscal year 2015 was $68,198. F. Litigation Various claims and lawsuits are pending against the City. In accordance with GAAP, those judgments considered "probable" are accrued, while those claims and judgments considered "reasonably possible" are disclosed but not accrued. In the opinion of City management and legal counsel, the maximum amount of all significant claims considered reasonably possible, excluding condemnation proceedings and the item described following, is approximately $500,000 as of September 30, 2015. Potential losses after insurance coverage on all probable claims and lawsuits, excluding the item following, will not have a material effect on the City's financial position as of September 30, 2015. G. Subsequent events The City has evaluated all events or transactions that occurred after September 30, 2015 up through February 26, 2015, the date the financial statements were issued. There were no significant subsequent events to disclose. H. New Accounting Pronouncements The Governmental Accounting Standards Board (GASB) issued the following statements which became effective for the fiscal year 2015. Statement No. 68 "Accounting and Financial Reporting for Pensions; an amendment of GASB Statement No. 27" — This statement replaces the requirements of Statements No. 27 and No. 50 related to pension plans that are administered through trusts or equivalent arrangements. The primary objective of this statement is to improve accounting and financial reporting by state and local governments as well as to provide information about pensions that are provided by other entities. This statement changes the focus of pension accounting from whether the employer is responsibly funding the pension plan to reporting a liability in the financial statements for any unfunded portion of pension benefits earned to -date. This statement establishes standards for measuring and recognizing this liability as well as related deferred outflows of resources, deferred inflows of resources, and expenses /expenditures. 73 September 30 (Unaudited) 2015 2014 (000s) (000s) Operating revenues $274,578 $ 271,281 Operating expenses 132,171 143,548 Operating income 142,407 127,733 Other non - operating sources (uses) 1,615 332 Current unrestricted assets 59,547 63,658 Total assets 835,699 960,066 Long -term debt — Noncurrent 497,649 618,536 Total liabilities 801,623 919,123 Total net position 34,076 40,943 Financial statements for TMPA are available from the TMPA web site www.texas .gb�g. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement with the City of Dallas During 1985, the City entered into an agreement with the City of Dallas that provided for the purchase of a minimum of 500,000 gallons /day of untreated water from the City of Dallas from Lake Lewisville. This contract was effective for 30 years and expired in the current fiscal year. The cost of water purchased under this agreement during fiscal year 2015 was $68,198. F. Litigation Various claims and lawsuits are pending against the City. In accordance with GAAP, those judgments considered "probable" are accrued, while those claims and judgments considered "reasonably possible" are disclosed but not accrued. In the opinion of City management and legal counsel, the maximum amount of all significant claims considered reasonably possible, excluding condemnation proceedings and the item described following, is approximately $500,000 as of September 30, 2015. Potential losses after insurance coverage on all probable claims and lawsuits, excluding the item following, will not have a material effect on the City's financial position as of September 30, 2015. G. Subsequent events The City has evaluated all events or transactions that occurred after September 30, 2015 up through February 26, 2015, the date the financial statements were issued. There were no significant subsequent events to disclose. H. New Accounting Pronouncements The Governmental Accounting Standards Board (GASB) issued the following statements which became effective for the fiscal year 2015. Statement No. 68 "Accounting and Financial Reporting for Pensions; an amendment of GASB Statement No. 27" — This statement replaces the requirements of Statements No. 27 and No. 50 related to pension plans that are administered through trusts or equivalent arrangements. The primary objective of this statement is to improve accounting and financial reporting by state and local governments as well as to provide information about pensions that are provided by other entities. This statement changes the focus of pension accounting from whether the employer is responsibly funding the pension plan to reporting a liability in the financial statements for any unfunded portion of pension benefits earned to -date. This statement establishes standards for measuring and recognizing this liability as well as related deferred outflows of resources, deferred inflows of resources, and expenses /expenditures. 73 CITY OF DENTON, TEXAS NOTES TO BASIC FINANCIAL STATEMENTS (continued) SEPTEMBER 30, 2015 The implementation of Statement No. 68 resulted in the restatement of the beginning net position of the governmental activities and the business -type activities in the government -wide financial statements and the beginning net position of the Statement of Revenues, Expenses, and Changes in Fund Net Position — Proprietary Funds and Internal Service Funds. The restatement included the elimination of the previously reported net pension obligation liability, the recording of the beginning net pension liability, and the beginning deferred outflow for pension contributions made after the measurement date. The total adjustment of $60,708,342 is shown in more detail in footnote I.F. on prior period adjustments. The following statements for the GASB are effective for future fiscal years ending as listed below. The City is in the process of reviewing and evaluating these statements and their potential impact on the City's financial statements. Statement No. 75 "Accounting and Financial Reporting for Postemployment Benefits Other Than Pensions" (OPEB) — This Statement replaces the requirements of Statements No. 45 and No. 57 related to OPEB. The primary objective of this Statement is to improve accounting and financial reporting by state and local governments for postemployment benefits other than pensions, OPEB. It also improves information provided by state and local governmental employers about financial support for OPEB that is provided by other entities. This Statement results from a comprehensive review of the effectiveness of existing standards of accounting and financial reporting for all postemployment benefits (pensions and OPEB) with regard to providing decision - useful information. This statement changes the focus of OPEB accounting from whether the employer is responsibly funding the OPEB benefits to reporting a liability in the financial statements for any unfunded portion of benefits earned to -date, and it will become effective for the City in fiscal year 2017. 74 CITY OF DENTON, TEXAS REQUIRED SUPPLEMENTARY INFORMATION TEXAS MUNICIPAL RETIREMENT SYSTEM SCHEDULE OF CHANGES IN NET PENSION LIABILITY AND RELATED RATIOS LAST FISCAL YEAR (PREVIOUS YEARS ARE NOT AVAILABLE) Plan fiduciary net position: Contributions - employer Measurement Contributions - employee Year Net investment income 2014 Total pension liability: (11,387,617) Service Cost $ 10,667,694 Interest (on the total pension liability) 25,182,941 Changes of benefit terms - Difference between expected and actual experience (171,241) Change of assumptions - Benefit payments, including refunds of employee contributions (11,387,617) Net change in total pension liability 24,291,777 Total pension liability - beginning 360,116,261 Total pension liability - ending (a) $ 384,408,038 Plan fiduciary net position: Contributions - employer $ 13,065,763 Contributions - employee 4,991,415 Net investment income 16,867,596 Benefit payments, including refunds of employee contributions (11,387,617) Administrative expense (176,083) Other (14,477) Net change in plan fiduciary net position 23,346,597 Plan fiduciary net position - beginning 294,819,596 Plan fiduciary net position - ending (b) $ 318,166,193 Net pension liability - ending (a) - (b) $ 66,241,845 Plan fiduciary net position as a percentage of total pension liability Covered employee payroll Net pension liability as a percentage of covered employee payroll 75 82.77% $ 71,025,494 93.26% Exhibit XII CITY OF DENTON, TEXAS REQUIRED SUPPLEMENTARY INFORMATION DENTON FIREMEN'S RELIEF AND RETIREMENT FUND SCHEDULE OF CHANGES IN NET PENSION LIABILITY AND RELATED RATIOS LAST FISCAL YEAR (PREVIOUS YEARS ARE NOT AVAILABLE) Total pension liability: Service Cost Interest (on the total pension liability) Changes of benefit terms Difference between expected and actual experience Change of assumptions Benefit payments, including refunds of employee contributions Net change in total pension liability Total pension liability - beginning Total pension liability - ending (a) Plan fiduciary net position: Contributions - employer Contributions - employee Net investment income Benefit payments, including refunds of employee contributions Administrative expense Other Net change in plan fiduciary net position Plan fiduciary net position - beginning Plan fiduciary net position - ending (b) Net pension liability - ending (a) - (b) Plan fiduciary net position as a percentage of total pension liability Covered employee payroll Net pension liability as a percentage of covered employee payroll 76 Measurement Year 2014 $ 2,747,253 5,685,396 (4,036,009) 4,396,640 80,490,694 $ 84,887,334 $ 2,566,875 1,745,419 4,411,066 (4,036,009) (81,005) 4,606,346 66,412,172 $ 71,018,518 $ 13,868,816 83.66% $ 14,238,486 97.40% Exhibit XIII CITY OF DENTON, TEXAS REQUIRED SUPPLEMENTARY INFORMATION TEXAS MUNICIPAL RETIREMENT SYSTEM SCHEDULE OF CONTRIBUTIONS LAST TEN FISCAL YEARS (Unaudited) Exhibit XIV Notes to Schedule: Actuarial determined contribution rates are calculated as of December 31st and become effective in January, 12 months and a day later. Contributions above do not include contributions into the supplemental death benefit fund. Methods and assumptions used to determine contribution rate for 2015: Actuarial Cost Method (a) (b) (c) (d) 20 Years Asset Valuation Method 10 Year Smoothed Market; 15% Soft Corridor Inflation 3.00% Salary Increases Contributions Investment Rate of Return 7.00% Contributions Experience -based table of rates that are specific to the City's plan of benefits. as a Percentage period 2005 - 2009. in Relation to Contribution of Covered Actuarially the Actuarially Excess Covered Employee Fiscal Determined Determined (Deficiency) Employee Payroll Year Contributions Contributions (b) - (a) Payroll (b) /(d) 2006 5,809,132 5,809,132 - 47,733,949 12.17% 2007 6,267,597 6,267,597 - 49,917,026 12.56% 2008 7,082,769 7,082,769 - 53,908,360 13.14% 2009 9,709,279 7,952,938 (1,756,341) 57,250,108 13.89% 2010 11,194,086 8,849,577 (2,344,509) 59,457,345 14.88% 2011 11,580,085 9,579,358 (2,000,727) 58,139,688 16.48% 2012 11,475,702 10,435,001 (1,040,701) 60,340,212 17.29% 2013 12,174,640 12,171,482 (3,158) 64,940,234 18.74% 2014 12,912,746 12,911,461 (1,285) 69,872,024 18.48% 2015 13,507,272 13,507,272 - 75,379,632 17.92% Notes to Schedule: Actuarial determined contribution rates are calculated as of December 31st and become effective in January, 12 months and a day later. Contributions above do not include contributions into the supplemental death benefit fund. Methods and assumptions used to determine contribution rate for 2015: Actuarial Cost Method Entry Age Normal Amortization Method Level Percentage of Payroll, Closed Remaining Amortization Period 20 Years Asset Valuation Method 10 Year Smoothed Market; 15% Soft Corridor Inflation 3.00% Salary Increases 3.50% to 12.00% including inflation Investment Rate of Return 7.00% Retirement Age Experience -based table of rates that are specific to the City's plan of benefits. Last updated for the 2010 valuation pursuant to an experience study of the period 2005 - 2009. Mortality RP2000 Combined Mortality Table with Blue Collar Adjustment with male rates multiplied by 109% and female rates multiplied by 103% and projected on a fully generational basis with scale BB. 77 CITY OF DENTON, TEXAS REQUIRED SUPPLEMENTARY INFORMATION FIREMEN'S RELIEF AND RETIREMENT FUND SCHEDULE OF CONTRIBUTIONS LAST TEN FISCAL YEARS (Unaudited) (a) (b) (c) (d) Exhibit XV Notes to Schedule: Annual required contributions are not actuarially determined. According to a City ordinance, since January 2010 the City contributes to the Firemen's Relief and Retirement Fund at the same percentage of payroll that the City contributes to the Texas Municipal Retirement System for other employees. The rates are calculated as of December 31st and become effective in January, 12 months and a day later. While the contribution requirements are not actuarially determined, state law requires an actuary certify the assumed City contribution rate is adequate. Methods and assumptions used to contribution adequacy for 2015: Actuarial Cost Method Entry Age Amortization Method Level Percentage of Payroll, Open Remaining Amortization Period 24 Years Asset Valuation Method 5 -year adjusted market value Inflation 3.25% Salary Increases 3.25% general increase, 1.98% for promotion, step, and longevity over 30 -year career Investment Rate of Return 7.00% Retirement Age Average expected age at retirement of 57 Mortality RP -2000 Combined Healthy Mortality Tables projected to 2024 by scale AA 78 Contributions Contributions as a Percentage in Relation to Contribution of Covered Annual the Annual Excess Covered Employee Fiscal Required Required (Deficiency) Employee Payroll Year Contributions Contributions (b) - (a) Payroll (b) /(d) 2006 942,237 942,237 - 9,422,370 10.00% 2007 1,193,993 1,193,993 - 10,854,477 11.00% 2008 1,426,906 1,426,906 - 11,890,880 12.00% 2009 1,747,908 1,747,908 - 12,485,061 14.00% 2010 1,976,419 1,976,419 - 13,070,041 15.12% 2011 2,141,662 2,141,662 - 12,828,446 16.69% 2012 2,253,667 2,253,667 - 12,899,800 17.47% 2013 2,579,453 2,579,453 - 13,629,825 18.93% 2014 2,576,652 2,576,652 - 13,828,070 18.63% 2015 2,535,719 2,535,719 - 14,029,051 18.07% Notes to Schedule: Annual required contributions are not actuarially determined. According to a City ordinance, since January 2010 the City contributes to the Firemen's Relief and Retirement Fund at the same percentage of payroll that the City contributes to the Texas Municipal Retirement System for other employees. The rates are calculated as of December 31st and become effective in January, 12 months and a day later. While the contribution requirements are not actuarially determined, state law requires an actuary certify the assumed City contribution rate is adequate. Methods and assumptions used to contribution adequacy for 2015: Actuarial Cost Method Entry Age Amortization Method Level Percentage of Payroll, Open Remaining Amortization Period 24 Years Asset Valuation Method 5 -year adjusted market value Inflation 3.25% Salary Increases 3.25% general increase, 1.98% for promotion, step, and longevity over 30 -year career Investment Rate of Return 7.00% Retirement Age Average expected age at retirement of 57 Mortality RP -2000 Combined Healthy Mortality Tables projected to 2024 by scale AA 78 CITY OF DENTON, TEXAS REQUIRED SUPPLEMENTARY INFORMATION SCHEDULE OF OTHER POST EMPLOYMENT BENEFITS FUNDING PROGRESS AND CONTRIBUTIONS LAST THREE VALUATION YEARS (Unaudited) Exhibit XVI 79 Unfunded Actuarial Actuarial Actuarial Actuarial Accrued Fiscal Valuation Value of Accrued Liability Funded Year Date Assets Liability (AAL) (UAAL) Percent 2010 10/1/2009 - $ 10,944,544 $ (10,944,544) 0% 2012 10/1/2011 - 12,565,747 (12,565,747) 0 2014 10/1/2013 - 13,715,238 (13,715,238) 0 UAAL as Percent of Annual Fiscal Covered Covered Required Actual Percent Year Payroll Payroll Contributions Contributions Contributed 2010 $ 74,045,518 14.8 $ 1,314,901 $ 370,759 28% 2012 71,315,386 17.6 1,582,219 1,481,210 94 2014 79,692,115 17.2 1,821,243 909,288 50 79 80 CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL DEBT SERVICE FUND FOR THE YEAR ENDED SEPTEMBER 30, 2015 Exhibit XVII EXPENDITURES: Debt service: Principal, interest and fiscal charges 52,579,539 54,014,287 16,508,014 37,394,378 53,902,392 111,895 Advance refunding escrow - - 120,519 (120,519) - - Bond issuance costs - - 62,675 (62,675) - - Total expenditures 52,579,539 54,014,287 16,691,208 37,211,184 53,902,392 111,895 Excess (deficiency) of revenues over (under) expenditures (36,342,431) (37,777,179) (380,168) (37,211,184) (37,591,352) 185,827 OTHER FINANCING SOURCES (USES): Refunding bonds issued - - 14,290,000 (14,290,000) Variance with - Payment to refunded bond escrow agent - - Adjustments - Actual on a Final Budget - - Budgeted Amounts Actual Budgetary Budgetary Positive 1,377,165 Original Final Amounts Basis Basis (Negative) REVENUES: 382,800 37,394,378 37,777,178 1,434,567 Total other financing sources (uses) Taxes $ 16,187,108 $ 16,187,108 $ 16,223,099 $ - $ 16,223,099 $ 35,991 Investment revenue 50,000 50,000 87,941 - 87,941 37,941 Total revenues 16,237,108 16,237,108 16,311,040 - 16,311,040 73,932 EXPENDITURES: Debt service: Principal, interest and fiscal charges 52,579,539 54,014,287 16,508,014 37,394,378 53,902,392 111,895 Advance refunding escrow - - 120,519 (120,519) - - Bond issuance costs - - 62,675 (62,675) - - Total expenditures 52,579,539 54,014,287 16,691,208 37,211,184 53,902,392 111,895 Excess (deficiency) of revenues over (under) expenditures (36,342,431) (37,777,179) (380,168) (37,211,184) (37,591,352) 185,827 OTHER FINANCING SOURCES (USES): Refunding bonds issued - - 14,290,000 (14,290,000) - - Payment to refunded bond escrow agent - - (15,604,758) 15,604,758 - - Premium on debt issuance - - 1,377,165 (1,377,165) - - Transfers in 36,342,611 36,342,611 382,800 37,394,378 37,777,178 1,434,567 Total other financing sources (uses) 36,342,611 36,342,611 445,207 37,331,971 37,777,178 1,434,567 Net change in fund balance 180 (1,434,568) 65,039 120,787 185,826 1,620,394 Fund balance at beginning of year 4,726,841 4,726,841 4,726,841 - 4,726,841 - Fund balance at end of year $ 4,727,021 $ 3,292,273 $ 4,791,880 $ 120,787 $ 4,912,667 $ 1,620,394 Adjustments - Budgetary Basis are pass- through debt service payments budgeted as transfers in from enterprise and internal service funds. Other Financing Sources (Uses) related to refunding are adjusted out as they are non - budgeted items reducing future debt service payments. 81 82 NONMAJOR GOVERNMENTAL FUNDS SPECIAL REVENUE FUNDS Special revenue funds are used to account for specific revenues that are legally restricted to expenditures for particular purposes. Community Development Block Grant (CDBG) — to account for the operations of projects utilizing Community Development Block Grant Funds. Such revenues are restricted to expenditures for specified projects by the Department of Housing and Urban Development. Recreation — to account for the revenues and expenditures for the recreation programs that are self - supporting. All expenditures will be reimbursed 100 %. Various business operations, such as concessions, fall into this account. Criminal Justice — to account for revenue received from the State of Texas Criminal Justice Division and other grants administered by the police department. Police Confiscation — to account for revenues received from confiscated goods. Expenditures are restricted to enhancing law enforcement. Tourist and Convention — to account for taxes received from hotel and motel occupancy for the purpose of promoting tourism. Street Improvement — to account for street maintenance and improvement activities. Gas Well Revenues — to account for the receipt of royalty, pooling, tax, and lease revenue related to gas wells. Citizens' Park Trusts — to account for several small trust funds that are for park development. All Other — to account for miscellaneous special revenue sources that are required to finance specific activities. 83 CITY OF DENTON, TEXAS COMBINING BALANCE SHEET NONMAJOR GOVERNMENTAL FUNDS AS OF SEPTEMBER 30, 2015 Special Revenue Funds Community Development Criminal Police Block Grant Recreation Justice Confiscation ASSETS Cash, cash equivalents and investments, at fair value $ - $ 563,217 $ - $ 421,879 Receivables (net of allowances): Accrued interest - 1,962 - 1,471 Other - 3,411 - - Interfund receivables - 105,434 - - Due from other governments 152,209 - 79,339 - Total assets $ 152,209 $ 674,024 $ 79,339 $ 423,350 LIABILITIES AND FUND BALANCES LIABILITIES: Accounts payable $ 92,259 $ 156,614 $ 10,787 $ - Interfund payables 42,364 - 63,070 - Unearned revenues - - - - Total liabilities 134,623 156,614 73,857 - DEFERRED INFLOWS OF RESOURCES: Unavailable revenue - intergovernmental - 3,941 79,339 - Total deferred inflows of revenues - 3,941 79,339 - FUND BALANCES (DEFICIT): Restricted for: Parks and recreation - - - - Other grants and purposes 17,586 - - 423,350 Committed to: Streets - - - - Parks and recreation - 513,469 - - Other purposes - - - - Assigned to: Other purposes - - - - Unassigned - - (73,857) - Total fund balance (deficit) 17,586 513,469 (73,857) 423,350 Total liabilities, deferred inflows of resources, and fund balances (deficit) $ 152,209 $ 674,024 $ 79,339 $ 423,350 84 Exhibit XVIII 85 Special Revenue Funds (continued) Total Tourist Citizens' Nonmajor and Street Gas Well Park All Governmental Convention Improvement Revenues Trusts Other Funds $ 1,681,878 $ 2,119,848 $ 133,461 $ 5,411,124 $ 5,586,571 $ 15,917,978 5,863 7,390 465 18,864 19,474 55,489 177,837 - 21,307 - 277,411 479,966 - - - - - 105,434 - - - - 441,674 673,222 $ 1,865,578 $ 2,127,238 $ 155,233 $ 5,429,988 $ 6,325,130 $ 17,232,089 $ 19,593 $ 739,015 $ - $ 11,559 $ 776,846 $ 1,806,673 - - - - - 105,434 - - - - 53,541 53,541 19,593 739,015 - 11,559 830,387 1,965,648 - - - - 68,563 151,843 - - - - 68,563 151,843 - - 155,218 5,418,429 14,613 5,588,260 1,845,985 - - - 931,545 3,218,466 - 1,388,223 - - - 1,388,223 - - 15 - - 513,484 - - - - 4,430,392 4,430,392 - - - - 49,630 49,630 - - - - - (73,857) 1,845,985 1,388,223 155,233 5,418,429 5,426,180 15,114,598 $ 1,865,578 $ 2,127,238 $ 155,233 $ 5,429,988 $ 6,325,130 $ 17,232,089 85 CITY OF DENTON, TEXAS COMBINING STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES NONMAJOR GOVERNMENTAL FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Tax revenue Franchise fees Fines and forfeitures Fees for services Investment revenue Intergovernmental Miscellaneous Total revenues EXPENDITURES: General government Public safety Public works Parks and recreation Capital outlay Debt service: Principal retirement Interest and other charges Total expenditures Excess (deficiency) of revenues over (under) expenditures OTHER FINANCING SOURCES (USES): Transfers in Transfers out Total other financing sources (uses) Net change in fund balances Fund balance (deficit) at beginning of year Fund balance (deficit) at end of year Special Revenue Funds Community Development Criminal Police Block Grant Recreation Justice Confiscation - - 388,846 1,951,747 - - - 4,692 - 1,798 1,886,388 - 528,020 - 90,498 220 - 13,207 1,976,886 1,956,659 528,020 403,851 1,836,721 - - - - - 373,392 112,849 1,720,605 - - 91,432 130,867 56,467 1,836,721 1,812,037 504,259 169,316 140,165 144,622 23,761 234,535 46,466 - (138,409) (204,567) - - (138,409) (204,567) 46,466 - 1,756 (59,945) 70,227 234,535 15,830 573,414 (144,084) 188,815 $ 17,586 $ 513,469 $ (73,857) $ 423,350 86 Exhibit XIX 87 Special Revenue Funds (continued) Total Tourist Citizens' Nonmaj or and Street Gas Well Park All Governmental Convention Improvement Revenues Trusts Other Funds $ 2,156,294 $ - $ - $ - $ 359,390 $ 2,515,684 - 9,026,403 - - - 9,026,403 - - - - 2,394,652 2,783,498 - 372,051 172,267 418,756 437,218 3,352,039 10,906 6,562 1,340 33,146 19,087 77,531 - - - - 831,013 3,245,421 1,051 4,632 - - 612,486 722,094 2,168,251 9,409,648 173,607 451,902 4,653,846 21,722,670 1,823,268 - - - 592,446 4,252,435 - - - - 2,532,649 3,018,890 - 8,806,503 - - - 8,806,503 - - - 14,019 297,986 2,032,610 - - - 324,612 289,192 892,570 - 52,199 - - - 52,199 - 6,298 - - - 6,298 1,823,268 8,865,000 - 338,631 3,712,273 19,061,505 344,983 544,648 173,607 113,271 941,573 2,661,165 - 558,888 - - 185,059 790,413 (2,500) (631,926) (200,000) - (54,096) (1,231,498) (2,500) (73,038) (200,000) - 130,963 (441,085) 342,483 471,610 (26,393) 113,271 1,072,536 2,220,080 1,503,502 916,613 181,626 5,305,158 4,353,644 12,894,518 $ 1,845,985 $ 1,388,223 $ 155,233 $ 5,418,429 $ 5,426,180 $ 15,114,598 87 CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: RECREATION FUND FOR YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Fees for services Investment revenue Miscellaneous Total revenues EXPENDITURES: Parks and recreation Capital outlay Total expenditures Excess (deficiency) of revenues over (under) expenditures Exhibit XX 2,143,015 2,123,448 1,720,605 (124,069) 1,596,536 526,912 - - 91,432 - 91,432 (91,432) 2,143,015 2,123,448 1,812,037 (124,069) 1,687,968 435,480 (78,413) (58,846) 144,622 124,069 268,691 327,537 OTHER FINANCING USES: Variance with SOURCES (USES): Adjustments - Actual on a Final Budget - Budgeted Amounts Actual Budgetary Budgetary Positive Original Final Amounts Basis Basis (Negative) (124,069) (143,636) (204,567) (124,069) (328,636) (185,000) $ 2,049,602 $ 2,049,602 $ 1,951,747 $ - $ 1,951,747 $ (97,855) 15,000 15,000 4,692 - 4,692 (10,308) - - 220 - 220 220 2,064,602 2,064,602 1,956,659 - 1,956,659 (107,943) 2,143,015 2,123,448 1,720,605 (124,069) 1,596,536 526,912 - - 91,432 - 91,432 (91,432) 2,143,015 2,123,448 1,812,037 (124,069) 1,687,968 435,480 (78,413) (58,846) 144,622 124,069 268,691 327,537 OTHER FINANCING USES: SOURCES (USES): Transfers out (124,069) (143,636) (204,567) (124,069) (328,636) (185,000) Total other financing uses (124,069) (143,636) (204,567) (124,069) (328,636) (185,000) Net change in fund balance (202,482) (202,482) (59,945) - (59,945) 142,537 Fund balance at beginning of year 573,414 573,414 573,414 - 573,414 - Fund balance at end of year $ 370,932 $ 370,932 $ 513,469 $ - $ 513,469 $ 142,537 Adjustments - Budgetary Basis are expenditures allocated from and reimbursed to other funds. These expenditures are recorded as operating expenditures but budgeted as cost of service transfers. 88 CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: POLICE CONFISCATION FUND FOR YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Fines and forfeitures Investment revenue Miscellaneous Total revenues EXPENDITURES: Public safety Capital outlay Total expenditures Net change in fund balance Fund balance at beginning of year Fund balance at end of year Exhibit XXI 89 Variance with Adjustments - Actual on a Final Budget - Budgeted Amounts Actual Budgetary Budgetary Positive Original Final Amounts Basis Basis (Negative) $ 200,000 $ 200,000 $ 388,846 $ - $ 388,846 $ 188,846 1,200 1,200 1,798 - 1,798 598 3,000 3,000 13,207 - 13,207 10,207 204,200 204,200 403,851 - 403,851 199,651 148,500 148,500 112,849 - 112,849 35,651 50,000 50,000 56,467 - 56,467 (6,467) 198,500 198,500 169,316 - 169,316 29,184 5,700 5,700 234,535 - 234,535 228,835 188,815 188,815 188,815 - 188,815 - $ 194,515 $ 194,515 $ 423,350 $ - $ 423,350 $ 228,835 89 CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: TOURIST AND CONVENTION FUND FOR YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Taxes Investment revenue Miscellaneous Total revenues EXPENDITURES: General government Total expenditures Excess (deficit) of revenues over (under) expenditures OTHER FINANCING SOURCES (USES): Transfers out Total other financing uses Net change in fund balance Fund balance at beginning of year Fund balance at end of year Exhibit XXII (17,769) (340,269) 344,983 (2,500) (2,500) (2,500) (2,500) (17,769) (342,769) 342,483 344,983 685,252 (2,500) - (2,500) - 342,483 685,252 1,503,502 1,503,502 1,503,502 - 1,503,502 - $ 1,485,733 $ 1,160,733 $ 1,845,985 $ - $ 1,845,985 $ 685,252 I Variance with Adjustments - Actual on a Final Budget - Budgeted Amounts Actual Budgetary Budgetary Positive Original Final Amounts Basis Basis (Negative) $ 1,791,637 $ 1,791,637 $ 2,156,294 $ - $ 2,156,294 $ 364,657 - - 10,906 - 10,906 10,906 - - 1,051 - 1,051 1,051 1,791,637 1,791,637 2,168,251 - 2,168,251 376,614 1,809,406 2,131,906 1,823,268 - 1,823,268 308,638 1,809,406 2,131,906 1,823,268 - 1,823,268 308,638 (17,769) (340,269) 344,983 (2,500) (2,500) (2,500) (2,500) (17,769) (342,769) 342,483 344,983 685,252 (2,500) - (2,500) - 342,483 685,252 1,503,502 1,503,502 1,503,502 - 1,503,502 - $ 1,485,733 $ 1,160,733 $ 1,845,985 $ - $ 1,845,985 $ 685,252 I CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: STREET IMPROVEMENT FUND FOR YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Franchise fees Fees for services Investment revenue Miscellaneous Total revenues EXPENDITURES: Public Works Debt service: Principal retirement Interest and other charges Total expenditures Excess (deficit) of revenues over (under) expenditures Exhibit XXIH 9,476,131 9,395,851 8,806,503 (92,871) 8,713,632 682,219 59,165 59,165 52,199 - 52,199 6,966 - - 6,298 - 6,298 (6,298) 9,535,296 9,455,016 8,865,000 (92,871) 8,772,129 682,887 104,343 184,623 544,648 92,871 637,519 452,896 OTHER FINANCING Variance with SOURCES (USES): Adjustments - Actual on a Final Budget - Budgeted Amounts Actual Budgetary Budgetary Positive Original Final Amounts Basis Basis (Negative) (645,730) (726,010) (631,926) (92,871) (724,797) 1,213 $ 9,279,639 $ 9,279,639 $ 9,026,403 $ - $ 9,026,403 $ (253,236) 350,000 350,000 372,051 - 372,051 22,051 10,000 10,000 6,562 - 6,562 (3,438) - - 4,632 - 4,632 4,632 9,639,639 9,639,639 9,409,648 - 9,409,648 (229,991) 9,476,131 9,395,851 8,806,503 (92,871) 8,713,632 682,219 59,165 59,165 52,199 - 52,199 6,966 - - 6,298 - 6,298 (6,298) 9,535,296 9,455,016 8,865,000 (92,871) 8,772,129 682,887 104,343 184,623 544,648 92,871 637,519 452,896 OTHER FINANCING SOURCES (USES): Transfers in 541,387 541,387 558,888 - 558,888 17,501 Transfers out (645,730) (726,010) (631,926) (92,871) (724,797) 1,213 Total other financing uses (104,343) (184,623) (73,038) (92,871) (165,909) 18,714 Net change in fund balance - - 471,610 - 471,610 471,610 Fund balance at beginning of year 916,613 916,613 916,613 - 916,613 - Fund balance at end of year $ 916,613 $ 916,613 $ 1,388,223 $ - $ 1,388,223 $ 471,610 Adjustments - Budgetary Basis are expenditures allocated from and reimbursed to other funds. These expenditures are recorded as operating expenditures but budgeted as cost of service transfers. I CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: GAS WELL REVENUES FUND FOR YEAR ENDED SEPTEMBER 30, 2015 REVENUES: Fees for service Investment revenue Total revenues OTHER FINANCING USES: Transfers out Total other financing uses Net change in fund balance Fund balance at beginning of year Fund balance at end of year Exhibit XXIV Variance with Adjustments - Actual on a Final Budget - Budgetary Budgetary Positive Budgeted Amounts Actual Original Final Amounts $ 200,000 $ 200,000 $ 172,267 $ 250 100 1,340 _ 200,250 200,100 173,607 (200,000) (200,000) (200,000) (200,000) (200,000) 2( 00,000) 250 100 (26,393) Basis (Negative) $ 172,267 $ (27,733) 1,340 1,240 173,607 (26,493) - (200,000) - (200,000) - - (26,393) (26,493) 181,626 181,626 181,626 - 181,626 - $ 181,876 $ 181,726 $ 155,233 $ - $ 155,233 $ (26,493) I CITY OF DENTON, TEXAS SCHEDULE OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES - BUDGET TO ACTUAL SPECIAL REVENUE FUNDS: CITIZENS' PARK TRUSTS FOR YEAR ENDED SEPTEMBER 30, 2015 Exhibit XXV 93 Variance with Adjustments - Actual on a Final Budget - Budgeted Amounts Actual Budgetary Budgetary Positive Original Final Amounts Basis Basis (Negative) REVENUES: Fees for service S 275,000 S 275,000 S 418,756 S - S 418,756 S 143,756 Investment revenue 14,000 14,000 33,146 - 33,146 19,146 Total revenues 289,000 289,000 451,902 - 451,902 162,902 EXPENDITURES: Parks and recreation - - 14,019 - 14,019 (14,019) Capital outlay - - 324,612 - 324,612 (324,612) Total expenditures - - 338,631 - 338,631 (338,631) Excess of revenues over expenditures 289,000 289,000 113,271 - 113,271 (175,729) OTHER FINANCING USES: Transfers out (1,200,000) (1,200,000) - - - 1,200,000 Total other financing uses (1,200,000) (1,200,000) - - - 1,200,000 Net change in fund balance (911,000) (911,000) 113,271 - 113,271 1,024,271 Fund balance at beginning of year 5,305,158 5,305,158 5,305,158 - 5,305,158 - Fund balance at end of year S 4,394,158 S 4,394,158 S 5,418,429 S - S 5,418,429 S 1,024,271 93 94 INTERNAL SERVICE FUNDS Internal Service Funds account for the financing of goods or services provided by one department for another. The City has six Internal Service Funds as follows: Materials Management Fund — to account for the financing of goods and services provided by Materials Management to other City departments. Such costs provided by Materials Management are billed to the other departments at standard labor charges and cost of parts plus 13 percent. Actual costs include depreciation on machinery and equipment used to provide the service. Fleet Services Fund — to account for the financing of goods and services provided by the Municipal Garage and Machine Shop to other City departments. Municipal Garage and Machine Shop billings include labor charges and cost of parts plus 25 percent. Actual costs include depreciation on the building, improvements, machinery, and equipment used to provide the service. Health Insurance Fund — to account for the accumulation of resources for the self - insurance activities of the City for employee medical insurance as well as other employee insurance benefits including long -term disability, short-term disability, dental insurance, and vision insurance. Risk Retention Fund — to account for the accumulation of resources for the payment of employee insurance claims and insurance policies. Technology Services Fund — to account for the accumulation of resources to provide computer programming services, systems analysis, imaging, print shop, and office services to City departments. Engineering Services Fund — to account for providing engineering, real estate, public works inspection, and development review services primarily to internal City departments although some services are provided to external entities. 95 CITY OF DENTON, TEXAS COMBINING STATEMENT OF NET POSITION INTERNAL SERVICE FUNDS AS OF SEPTEMBER 30, 2015 96 Materials Fleet Health Risk Management Services Insurance Retention Fund Fund Fund Fund ASSETS: Current assets: Cash, cash equivalents and investments, at fair value $ 11,491 $ 1,263,110 $ 5,813,812 $ 6,946,914 Receivables, net of allowances: Accrued interest - 4,403 20,267 24,217 Other - 59,766 - - Merchandise inventory 5,893,144 101,258 - - Total current assets 5,904,635 1,428,537 5,834,079 6,971,131 Noncurrent assets: Escrow deposit - - 163,000 - Capital assets, net of accumulated depreciation 734,679 4,187,140 - - Total noncurrent assets 734,679 4,187,140 163,000 - Total assets 6,639,314 5,615,677 5,997,079 6,971,131 DEFERRED OUTFLOWS OF RESOURCES: Deferred charges on refunding 36,345 16,682 - - Deferred pension actuarial losses 33,216 42,626 - 21,737 Deferred pension contributions 108,374 139,079 - 70,923 Total deferred outflows of resources 177,935 198,387 - 92,660 LIABILITIES: Current liabilities: Accounts payable 832,219 843,350 91,858 115,485 Claims payable - - 1,780,201 452,838 Compensated absences payable 50,839 86,144 - 40,571 Leases payable - - - - Accrued interest 1,665 4,818 - - Interfund payables 4,000,000 - - - Certificate and general obligation bonds 41,969 211,771 - - Total current liabilities 4,926,692 1,146,083 1,872,059 608,894 Noncurrent liabilities: Leases payable - - - - Payable from restricted assets: General obligation bonds payable 315,217 682,838 - - Compensated absences payable 1,531 24,708 - 17,742 Claims payable - - - 2,489,940 Municipal pension obligation 729,571 936,277 - 477,449 Other post employment benefits 58,513 91,701 - 27,366 Total noncurrent liabilities: 1,104,832 1,735,524 - 3,012,497 Total liabilities 6,031,524 2,881,607 1,872,059 3,621,391 DEFERRED INFLOWS OF RESOURCES: Deferred pension excess earnings 1,516 1,946 - 992 Total deferred inflows of resources 1,516 1,946 - 992 NET POSITION: Net investment in capital assets 413,838 3,309,213 - - Unrestricted 370,371 (378,702) 4,125,020 3,441,408 Total net position $ 784,209 $ 2,930,511 $ 4,125,020 $ 3,441,408 96 Exhibit XXVI Total Technology Engineering Internal Services Services Service $ 3,936,539 $ 1,400,982 $ 19,372,848 13,724 4,884 67,495 378 - 60,144 - - 5,994,402 3,950,641 1,405,866 25,494,889 8,841 - 171,841 5,421,733 51,063 10,394,615 5,430,574 51,063 10,566,456 9,381,215 1,456,929 36,061,345 - - 53,027 99,727 80,139 277,445 325,386 261,476 905,238 425,113 341,615 1,235,710 373,119 143,325 2,399,356 - - 2,233,039 166,602 162,153 506,309 753,091 - 753,091 252 - 6,735 - - 4,000,000 10,195 - 263,935 1,303,259 305,478 10,162,465 1,215,599 - 1,215,599 35,310 - 1,033,365 16,386 15,336 75,703 - - 2,489,940 2,190,489 1,760,246 6,094,032 117,755 122,728 418,063 3,575,539 1,898,310 11,326,702 4,878,798 2,203,788 21,489,167 4,553 3,658 12,665 4,553 3,658 12,665 3,407,538 51,063 7,181,652 1,515,439 (459,965) 8,613,571 $ 4,922,977 $ (408,9021 $ 15,795,223 97 CITY OF DENTON, TEXAS COMBINING STATEMENT OF REVENUES, EXPENSES AND CHANGES IN FUND NET POSITION INTERNAL SERVICE FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 OPERATING REVENUES: Charges for goods and services Miscellaneous Total operating revenues OPERATING EXPENSES: Operating expenses before depreciation Depreciation Total operating expenses Operating income (loss) NONOPERATING REVENUES (EXPENSES): Investment revenue Interest expense and fiscal charges Loss on disposal of capital assets Total non - operating revenues (expenses) Income (loss) before contributions and transfers Capital contributions Transfers in Transfers out Change in net position Net position at beginning of year - as previously stated Prior period adjustment (Note I.E) Net position at beginning of year Total net position at end of year Materials Fleet Health Risk Management Services Insurance Retention Fund Fund Fund Fund $ 9,181,274 $ 9,511,896 $ 23,860,901 $ 2,939,659 107,547 5,213 2,085,589 153,470 9,288,821 9,517,109 25,946,490 3,093,129 9,091,168 9,214,820 27,461,462 3,677,273 21,601 155,289 - - 9,112,769 9,370,109 27,461,462 3,677,273 176,052 147,000 (1,514,972) (584,144) - 5,228 31,762 42,808 (16,399) (41,101) - - 4,605 2,478 - - (11,794) (33,395) 31,762 42,808 164,258 113,605 (1,483,210) (541,336) 34,436 - - - - (65,108) - - 198,694 48,497 (1,483,210) (541,336) 1,124,101 3,536,716 5,608,230 4,344,688 (538,586) (654,702) - (361,944) 585,515 2,882,014 5,608,230 3,982,744 $ 784,209 $ 2,930,511 $ 4,125,020 $ 3,441,408 98 Exhibit XXVII i Total Technology Engineering Internal Services Services Service Fund Fund Funds $ 10,823,625 $ 4,582,103 $ 60,899,458 61,813 - 2,413,632 10,885,438 4,582,103 63,313,090 7,422,856 3,919,673 60,787,252 1,887,455 20,787 2,085,132 9,310,311 3,940,460 62,872,384 1,575,127 641,643 440,706 23,661 7,927 111,386 (49,072) - (106,572) (54,149) 5,074 (41,992) (79,560) 13,001 (37,178) 1,495,567 654,644 403,528 - - 34,436 35,280 500 35,780 (110,775) (205,189) (381,072) 1,420,072 449,955 92,672 5,131,137 482,179 20,227,051 (1,628,232) (1,341,036) (4,524,500) 3,502,905 (858,857) 15,702,551 $ 4,922,977 $ (408,902) $ 15,795,223 i CITY OF DENTON, TEXAS COMBINING STATEMENT OF CASH FLOWS INTERNAL SERVICE FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 RECONCILIATION OF OPERATING INCOME (LOSS) TO NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES: Operating income (loss) Materials Fleet Health Adjustments: Management Services Insurance Depreciation expense Fund Fund Fund CASH FLOWS FROM OPERATING ACTIVITIES: - 44,949 - Cash received from customers $ 9,288,821 $ 9,562,058 $ 25,963,491 Cash paid to employees for services (1,242,725) (1,652,816) - Cash paid to suppliers (8,007,283) (7,429,391) (26,806,128) Net cash provided (used) by operations 38,813 479,851 (842,637) CASH FLOWS FROM NONCAPITAL FINANCING 2,683 11,274 - ACTIVITIES: 140,000 - - Transfers out - (65,108) - Transfers in - - - Net cash used by noncapital (137,239) 332,851 672,335 financing activities - (65,108) - CASH FLOWS FROM CAPITAL FINANCING ACTIVITIES: Principal payments on capital debt (34,129) (211,189) - Interest and fiscal charges (13,804) (42,601) - Principal payments under capital lease obligation - - - Proceeds from the sale of fixed assets 4,605 2,478 - Acquisition and construction of capital assets (8,921) (266,886) - Net cash provided (used) by capital financing activities (52,249) (518,198) - CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from sale and maturities of investment securities - 607,865 2,971,668 Purchase of investment securities - (522,338) (2,259,026) Interest received on investments - 4,857 31,113 Net cash provided (used) by investing activities - 90,384 743,755 Net increase (decrease) in cash and cash equivalents (13,436) (13,071) (98,882) Cash and cash equivalents at beginning of year 24,927 147,399 717,162 Cash and cash equivalents at end of year 11,491 134,328 618,280 Investments, at fair value - 1,128,782 5,195,532 Cash, cash equivalents and investments, at fair value $ 11,491 $ 1,263,110 $ 5,813,812 RECONCILIATION OF OPERATING INCOME (LOSS) TO NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES: Operating income (loss) $ 176,052 $ 147,000 $ (1,514,972) Adjustments: Depreciation expense 21,601 155,289 - Decrease (Increase) in receivables - 44,949 - Decrease (Increase) in inventories (732,745) 83,553 - Decrease in prepaid items - - - Decrease in escrow deposits items - - 17,000 Increase (Decrease) in accounts payable 446,589 54,981 655,335 Increase in compensated absences 2,683 11,274 - Increase in interfund payables 140,000 - - Decrease in net municipal pension obligation, as restated (26,234) (33,665) - Increase in other post employment benefits 10,867 16,470 - Total adjustments (137,239) 332,851 672,335 Net cash provided (used) by operating activities $ 38,813 $ 479,851 $ (842,637) NONCASH CAPITAL AND RELATED FINANCING ACTIVITIES: Decrease in fair value of investments - 694 3,042 Capital asset contributions 34,436 - - Increase in capital lease obligations - - - Exhibit XXVIII 101 Total Risk Technology Engineering Internal Retention Services Services Service Fund Fund Fund Funds $ 3,089,802 $ 10,885,060 $ 4,582,103 $ 63,371,335 (779,285) (3,595,918) (3,054,210) (10,324,954) (2,461,256) (3,887,257) (962,024) (49,553,339) (150,739) 3,401,885 565,869 3,493,042 - (110,775) (205,189) (381,072) - 35,280 500 35,780 - (75,495) (204,689) (345,292) - (80,000) - (325,318) - (52,588) - (108,993) - (764,479) - (764,479) - 26,729 5,074 38,886 - (1,520,589) - (1,796,396) - (2,390,927) 5,074 (2,956,300) 3,121,725 695,199 236,561 7,633,018 (3,038,666) (1,553,613) (571,260) (7,944,903) 42,808 18,768 6,089 103,635 125,867 (839,646) (328,610) (208,250) (24,872) 95,817 37,644 (16,800) 763,654 322,821 111,345 2,087,308 738,782 418,638 148,989 2,070,508 6,208,132 3,517,901 1,251,993 17,302,340 $ 6,946,914 $ 3,936,539 $_I,400 982 $ 19,372,848 $ (584,144) $ 1,575,127 $ 641,643 $ 440,706 - 1,887,455 20,787 2,085,132 (3,327) (378) - 41,244 - - - (649,192) - - 17,700 17,700 - - - 17,000 444,247 (11,811) (75,478) 1,513,863 3,704 7,296 2,531 27,488 - - - 140,000 (453,612) (78,762) (63,294) (655,567) 442,393 22,958 21,980 514,668 433,405 1,826,758 (75,774) 3,052,336 $ (150,739) $_3,401,885 $ 565,869 $ 3,493,042 4,005 2,704 977 11,422 - - - 34,436 - 1,793,040 - 1,793,040 101 CITY OF DENTON, TEXAS COMBINING STATEMENT OF ASSETS AND LIABILITIES AGENCY FUNDS AS OF SEPTEMBER 30, 2015 ASSETS: Cash, cash equivalents and investments, at fair value Accrued interest Other assets Total assets LIABILITIES: Accounts payable Total liabilities Agency Funds Other Payroll Developers' Agency Fund Escrow Fund Funds Exhibit XXIX Total Agency Funds $ 1,497,577 $ 230,504 $ 413,153 $ 2,141,234 - 804 - 804 - 76,978 76,978 $ 1,497,577 $ 231,308 $ 490,131 $ 2,219,016 $ 1,497,577 $ 231,308 $ 490,131 $ 2,219,016 $ 1,497,577 $ 231,308 $ 490,131 7 2,219,016 102 CITY OF DENTON, TEXAS COMBINING STATEMENT OF CHANGES IN ASSETS AND LIABILITIES AGENCY FUNDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 PAYROLL FUND ASSETS Cash and deposits Total assets LIABILITIES Accounts payable Total liabilities DEVELOPERS' ESCROW FUND ASSETS Cash and deposits Accrued interest Total assets LIABILITIES Accounts payable Total liabilities OTHER AGENCY FUNDS ASSETS Cash, cash equivalents and investments, at fair value Other assets Total assets LIABILITIES Accounts payable Total liabilities TOTAL AGENCY FUNDS ASSETS Cash, cash equivalents and investments, at fair value Accrued interest Other assets Total assets LIABILITIES Accounts payable Total liabilities Exhibit XXX Balance Balance October 1, 2014 Additions Deductions September 30, 2015 $ 1,405,039 $ 50,980,246 $ 50,887,708 $ 1,497,577 $ 1,405,039 $ 50,980,246 $ 50,887,708 $ 1,497,577 $ 1,405,039 $ 50,980,246 $ 50,887,708 $ 1,497,577 $ 1,405,039 $ 50,980,246 $ 50,887,708 $ 1,497,577 $ 229,201 $ 1,303 $ - $ 230,504 679 804 679 804 $ 229,880 $ 2,107 $ 679 $ 231,308 $ 229,880 $ 2,107 $ $ 229,880 $ 2,107 $ 679 $ 231,308 679 $ 231,308 $ 358,100 $ 2,062,970 $ 2,007,917 $ 413,153 111,622 326,184 360,828 76,978 $ 469,722 $ 2,389,154 $ 2,368,745 $ 490,131 $ 469,722 $ 2,389,154 $ 2,368,745 $ 490,131 $ 469,722 $ 2,389,154 $ 2,368,745 $ 490,131 $ 1,992,340 $ 53,044,519 $ 52,895,625 $ 2,141,234 679 804 679 804 111,622 326,184 360,828 76,978 $ 2,104,641 $ 53,371,507 $ 53,257,132 $ 2,219,016 $ 2,104,641 $ 53,371,507 $ 53,257,132 $ 2,219,016 $ 2,104,641 $ 53,371,507 7 53,257,132 $ 2,219,016 103 104 CITY OF DENTON, TEXAS CAPITAL ASSETS USED IN THE OPERATION OF GOVERNMENTAL FUNDS COMPARATIVE SCHEDULES BY SOURCE* AS OF SEPTEMBER 30, 2014 AND 2015 Governmental funds capital assets: Land Work in progress Buildings Plant, machinery and equipment Infrastructure Total governmental funds capital assets Investments in governmental funds capital assets by source: General fund Special revenue funds Capital projects funds Total governmental funds capital assets Exhibit XXXI *This schedule presents only the capital asset balances related to governmental funds. Accordingly, the capital assets reported in internal service funds are excluded from the above amounts. Generally, the capital assets of internal service funds are included as governmental activities in the statement of net assets. 105 2015 2014 $ 15,068,379 $ 14,966,181 48,633,770 36,765,958 57,660,509 57,660,509 72,005,242 65,276,697 235,300,412 228,073,935 $ 428,668,312 $ 402,743,280 $ 186,531,361 $ 182,195,367 8,988,533 8,455,371 233,148,418 212,092,542 $ 428,668,312 $ 402,743,280 *This schedule presents only the capital asset balances related to governmental funds. Accordingly, the capital assets reported in internal service funds are excluded from the above amounts. Generally, the capital assets of internal service funds are included as governmental activities in the statement of net assets. 105 CITY OF DENTON, TEXAS Exhibit XXXII CAPITAL ASSETS USED IN THE OPERATION OF GOVERNMENTAL FUNDS SCHEDULE BY FUNCTION AND ACTIVITY* AS OF SEPTEMBER 30, 2015 Plant, Machinery Work and in Function and Activity Land Buildings Equipment Infrastructure Progress Total General government: Finance Legal Human resources City manager /economic development Facilities management Library Building inspections Planning /community development Engineering Community improvement services Gas Well Review Total general government Public works: Traffic operations Streets Total public works Parks and recreation Public safety: Fire administration Fire operations Fire prevention Emergency medical services Police Animal services Municipal court /judge /clerks Total public safety Total governmental funds capital assets - 14,600 1,627,374 17,945,175 3,698,836 23,285,985 890,783 5,000 6,139,254 201,453,736 31,758,797 240,247,570 890,783 19,600 7,766,628 219,398,911 35,457,633 263,533,555 10,862,754 16,248,837 11,714,477 15,287,708 1,202,820 55,316,596 - - 45,930 $ - $ - $ 45,930 - - 358,124 - - 358,124 - - 6,643 - 343,554 350,197 - 808,462 665,574 - 14,565 1,488,601 286,074 15,529,855 10,318,174 570,021 1,675,157 28,379,281 - 12,050,477 7,610,571 14,715 63,135 19,738,898 - - 252,761 - 45,188 297,949 - 494,500 485,318 24,057 41,523 1,045,398 - - 51,189 - 186,181 237,370 - - 156,217 - - 156,217 - - 27,478 - - 27,478 286,074 28,883,294 19,977,979 608,793 2,369,303 52,125,443 - 14,600 1,627,374 17,945,175 3,698,836 23,285,985 890,783 5,000 6,139,254 201,453,736 31,758,797 240,247,570 890,783 19,600 7,766,628 219,398,911 35,457,633 263,533,555 10,862,754 16,248,837 11,714,477 15,287,708 1,202,820 55,316,596 - - 231,472 - - 231,472 2,024,704 12,109,983 15,303,550 5,000 3,236,350 32,679,587 - - 1,402,608 - - 1,402,608 - - 381,368 - - 381,368 - 11,993 14,307,771 - 596,219 14,915,983 1,004,064 386,802 427,612 - 5,723,286 7,541,764 - - 491,777 - 48,159 539,936 3,028,768 12,508,778 32,546,158 5,000 9,604,014 57,692,718 $ 15,068,379 $ 57,660,509 $ 72,005,242 $ 235,300,412 $ 48,633,770 $ 428,668,312 *This schedule presents only the capital asset balances related to governmental funds. Accordingly, the capital assets reported in internal service funds are excluded from the above amounts. Generally, the capital assets of internal service funds are included as governmental activities in the statement of net assets. 106 CITY OF DENTON, TEXAS CAPITAL ASSETS USED IN THE OPERATION OF GOVERNMENTAL FUNDS SCHEDULE OF CHANGES BY FUNCTION AND ACTIVITY* FOR THE YEAR ENDED SEPTEMBER 30, 2015 Governmental Funds Capital Assets Function and Activity October 1, 2014 Additions General government: Exhibit XXXIII Governmental Funds Capital Assets Deductions September 30, 2015 Finance $ 48,265 $ - $ (2,335) $ 45,930 Legal 358,124 - - 358,124 Human resources 6,643 - - 6,643 City manager /economic development 1,287,981 186,055 - 1,474,036 Facilities management 25,005,607 1,761,333 (62,816) 26,704,124 Library 19,494,307 457,826 (276,370) 19,675,763 Building inspections 217,890 34,871 - 252,761 Planning /community development 1,003,875 - - 1,003,875 Engineering - 51,189 - 51,189 Code Enforcement 173,062 12,203 (29,048) 156,217 Gas Well Review 62,349 - (34,871) 27,478 Total general government 47,658,103 2,503,477 (405,440) 49,756,140 Public works: Traffic operations 19,561,639 76,656 (51,146) 19,587,149 Streets 199,948,348 9,153,043 (612,618) 208,488,773 Total public works 219,509,987 9,229,699 (663,764) 228,075,922 Parks and recreation 52,854,652 1,559,264 (300,140) 54,113,776 Public safety: Fire administration 169,450 62,022 - 231,472 Fire operations 28,194,752 1,706,296 (457,811) 29,443,237 Fire prevention 1,366,808 35,800 - 1,402,608 Emergency medical services 381,368 - - 381,368 Police 13,599,849 1,525,143 (805,228) 14,319,764 Animal services 1,750,576 102,927 (35,025) 1,818,478 Municipal court /judge /clerks 491,777 - - 491,777 Total public safety 45,954,580 3,432,188 (1,298,064) 48,088,704 Work in progress 36,765,958 23,186,191 (11,318,379) 48,633,770 Total governmental funds capital assets $ 402,743,280 $ 39,910,819 $ (13,985,787) $ 428,668,312 *This schedule presents only the capital asset balances related to governmental funds. Accordingly, the capital assets reported in internal service funds are excluded from the above amounts. Generally, the capital assets of internal service funds are included as governmental activities in the statement of net assets. 107 108 STATISTICAL SECTION This part of the City of Denton's comprehensive annual financial report presents detailed information as a context for understanding what the information in the financial statements, note disclosures, and required supplementary information says about the city's overall financial health. Contents Financial Trends These schedules contain trend information to help the reader understand how the city's financial performance and well -being have changed over time. (Tables 1 — 4) Revenue Capacity These schedules contain information to help the reader assess the city's most significant local revenue source, the property tax. These tables do not include the Electric fund information due to confidentiality of information necessary for competitive rates. (Tables 5 — 8) Debt Capacity These schedules present information to help the reader assess the affordability of the city's current level of outstanding debt and the city's ability to issue additional debt in the future. (Tables 9 — 12) Demographic and Economic Information These schedules offer demographic and economic indicators to help the reader understand the environment within which the city's financial activities take place. (Tables 13 — 14) Operating Information These schedules contain service and infrastructure data to help the reader understand how the information in the city's financial report relates to the services the city provides and the activities it performs. (Tables 15 — 17) Sources: Unless otherwise noted, the information in these schedules is derived from the comprehensive annual financial reports for the relevant year. IM CITY OF DENTON, TEXAS NET POSITION BY COMPONENT LAST TEN FISCAL YEARS (accrual basis of accounting) Business -type activities Net investment in capital assets 2006 2007 2008 2009 2010 Governmental activities 30,974,925 31,015,188 33,087,609 33,380,595 30,598,923 Net investment in capital assets $ 107,410,289 $ 99,858,383 $ 102,040,021 $ 102,110,134 $ 104,636,239 Restricted 439,658 886,141 1,454,579 1,947,553 2,894,676 Unrestricted 30,352,691 30,738,026 37,610,966 38,252,078 46,480,569 Total governmental activities net position 138,202,638 131,482,550 141,105,566 142,309,765 154,011,484 Business -type activities Net investment in capital assets 213,074,701 242,015,614 263,325,859 282,463,031 277,356,195 Restricted 30,974,925 31,015,188 33,087,609 33,380,595 30,598,923 Unrestricted 90,843,185 107,837,825 107,545,434 109,826,810 131,497,936 Total business -type activities net position 334,892,811 380,868,627 403,958,902 425,670,436 439,453,054 Primary government Net investment in capital assets 320,484,990 341,873,997 365,365,880 384,573,165 381,992,434 Restricted 31,414,583 31,901,329 34,542,188 35,328,148 33,493,599 Unrestricted 121,195,876 138,575,851 145,156,400 148,078,888 177,978,505 Total primary government net position $ 473,095,449 $ 512,351,177 $ 545,064,468 $ 567,980,201 $ 593,464,538 Source: Comprehensive Annual Financial Reports MR Table 1 2011 2012 2013 2014 2015 $ 103,073,465 $ 101,784,929 $ 116,146,838 $ 128,915,116 $ 141,914,877 2,839,556 3,460,027 4,116,256 12,233,226 13,215,421 34,590,673 35,005,109 35,136,072 28,096,148 (8,775,520) 140,503,694 140,250,065 155,399,166 169,244,490 146,354,778 296,006,601 315,479,026 347,780,207 383,678,313 421,894,337 30,454,314 28,559,731 28,654,879 28,056,605 25,356,458 158,120,736 169,653,341 158,145,443 139,515,508 122,542,446 484,581,651 513,692,098 534,580,529 551,250,426 569,793,241 399,080,066 417,263,955 463,927,045 512,593,429 563,809,214 33,293,870 32,019,758 32,771,135 40,289,831 38,571,879 192,711,409 204,658,450 193,281,515 167,611,656 113,766,926 $ 625,085,345 $ 653,942,163 $ 689,979,695 $ 720,494,916 $ 716,148,019 Ilm CITY OF DENTON, TEXAS CHANGES IN NET POSITION LAST TEN FISCAL YEARS (accrual basis of accounting) Business -type activities: 2006 2007 2008 2009 2010 EXPENSES 145,368,132 123,926,967 138,791,009 124,901,262 114,903,831 Governmental activities: 26,708,095 25,839,614 26,226,068 28,636,190 27,219,944 General government S 22,165,661 S 22,145,804 S 26,408,949 S 27,482,131 529,569,535 Public safety 36,626,635 42,161,674 43,426,526 45,368,783 47,998,906 Public works 12,485,281 14,008,867 15,448,473 15,816,065 15,767,926 Parks and recreation 10,497,241 11,564,247 12,927,020 12,755,037 12,854,336 Interest expense 4,333,428 4,658,128 5,372,868 5,733,268 5,121,329 Total governmental activities expenses 86,108,246 94,538,720 103,583,836 107,155,284 111,312,032 Business -type activities: Electric system 145,368,132 123,926,967 138,791,009 124,901,262 114,903,831 Water system 26,708,095 25,839,614 26,226,068 28,636,190 27,219,944 Wastewater system 19,027,926 18,785,353 19,413,247 19,909,229 20,560,600 Solid waste 13,454,556 15,451,025 17,065,295 18,036,331 18,028,832 Airport - - - - - Total business -type activities expenses 204,558,709 184,002,959 201,495,619 191,483,012 180,713,207 Total primary government expenses 290,666,955 278,541,679 305,079,455 298,638,296 292,025,239 PROGRAM REVENUES Governmental activities: Charges for services: 149,419,800 128,973,477 138,467,222 128,511,236 119,156,314 General government 3,904,941 3,694,869 3,310,592 4,792,856 3,551,733 Public safety 6,023,100 6,160,611 6,461,037 6,554,619 6,431,007 Public works 802,711 800,378 853,091 586,377 1,425,683 Parks and recreation 3,234,347 3,220,837 3,292,528 2,990,921 3,372,579 Operating grants and contributions 3,712,817 2,991,224 3,306,325 2,281,136 3,407,085 Capital grants and contributions 5,536,786 5,399,220 7,308,398 3,641,296 15,206,424 Total governmental activities 231,173,695 203,846,383 214,897,902 207,407,522 193,067,732 program revenues 23,214,702 22,267,139 24,531,971 20,847,205 33,394,511 Business -type activities: Charges for services: Electric system 149,419,800 128,973,477 138,467,222 128,511,236 119,156,314 Water system 33,436,651 27,830,767 30,843,797 30,067,774 28,407,954 Wastewater system 23,670,458 22,634,454 23,184,369 22,342,174 21,917,651 Solid waste 14,624,132 15,967,051 16,660,375 18,386,616 18,432,245 Airport - - - - - Capital grants and contributions 10,022,654 8,440,634 5,742,139 8,099,722 5,153,568 Total business -type activities program revenues 231,173,695 203,846,383 214,897,902 207,407,522 193,067,732 Total primary government program revenues 254,388,397 226,113,522 239,429,873 228,254,727 226,462,243 NET (EXPENSE)/REVENUE Governmental activities (62,893,544) (72,271,581) (79,051,865) (86,308,079) (77,917,521) Business -type activities 26,614,986 19,843,424 13,402,283 15,924,510 12,354,525 Total primary government program net expense S (36,278,558) S (52,428,157) S (65,649,582) S (70,383,569) S (65,562,996) 112 Table 2 2011 2012 2013 2014 2015 $28,198,604 $29,421,275 $27,686,735 $30,476,840 $31,260,126 49,154,371 52,496,010 52,906,985 56,893,859 58,132,146 16,089,302 18,662,029 18,663,884 16,950,280 20,331,934 12,421,893 12,968,426 13,714,245 14,543,461 14,982,742 5,046,724 4,755,938 4,464,309 4,339,154 4,384,973 110,910,894 118,303,678 117,436,158 123,203,594 129,091,921 117,769,599 122,428,808 146,246,880 157,906,294 158,106,661 28,293,109 26,822,690 26,814,020 24,023,392 25,870,489 20,455,424 20,890,614 21,467,088 22,176,191 24,307,305 20,008,746 21,695,322 21,730,796 23,844,055 26,766,890 1,326,397 1,472,155 1,608,989 2,435,446 2,100,281 187,853,275 193,309,589 217,867,773 230,385,378 237,151,626 298,764,169 311,613,267 335,303,931 353,588,972 366,243,547 4,108,687 3,873,349 4,105,648 4,645,655 5,364,405 7,075,328 7,069,770 7,767,083 7,064,927 7,276,024 525,024 1,086,269 1,159,605 885,010 707,604 3,964,517 3,951,433 4,059,383 5,833,238 4,926,465 4,270,697 2,598,157 3,118,105 4,788,149 3,380,119 7,497,908 4,292,468 14,671,571 11,127,695 10,443,220 27,442,161 22,871,446 34,881,395 34,344,674 32,097,837 131,435,554 132,352,950 136,655,892 150,362,507 167,696,288 36,790,720 36,265,061 37,586,306 34,865,803 37,572,331 23,338,841 24,570,095 26,588,179 28,629,754 30,790,885 20,979,967 22,944,272 24,468,976 25,980,914 29,091,216 3,203,426 1,909,619 1,880,812 1,925,825 1,277,402 5,053,024 4,317,463 9,877,185 5,656,622 8,593,699 220,801,532 222,359,460 237,057,350 247,421,425 275,021,821 248,243,693 245,230,906 271,938,745 281,766,099 307,119,658 (83,468,733) (95,432,232) (82,554,763) (88,858,920) (96,994,084) 32,948,257 29,049,871 19,189,577 17,036,047 37,870,195 $ (50,520,476) $ (66,382,361) $ (63,365,186) $ (71,822,873) $ (59,123,889) (continued) 113 CITY OF DENTON, TEXAS CHANGES IN NET POSITION LAST TEN FISCAL YEARS (accrual basis of accounting) 2007 2008 2009 2010 S 34,756,356 S 41,499,791 S 43,187,433 543,144,645 20,653,932 2006 GENERAL REVENUES AND OTHER CHANGES IN NET POSITION 15,197,943 Governmental activities: 15,669,981 Taxes: 1,268,627 Property tax S 30,000,847 Sales taxi 20,343,413 Franchise tax 16,499,994 Hotel occupancy tax 1,132,500 Beverage tax 257,950 Bingo tax 24,260 Investment income 1,967,473 Gain on sale of capital assets - 2007 2008 2009 2010 S 34,756,356 S 41,499,791 S 43,187,433 543,144,645 20,653,932 21,440,839 20,466,772 20,484,954 15,197,943 16,197,042 15,669,981 17,457,994 1,268,627 1,369,667 1,239,261 1,302,617 294,623 319,541 338,700 347,940 23,708 23,653 22,915 22,611 3,632,744 3,287,282 2,413,339 684,709 Miscellaneous 3,892,087 3,199,131 4,214,028 3,327,758 5,690,969 Transfers 895,106 (13,475,571) 323,038 846,119 482,801 Total governmental activities 75,013,630 65,551,493 88,674,881 87,512,278 89,619,240 Business -type activities: Investment income 7,298,870 12,108,632 7,817,671 6,075,453 1,653,515 Gain on sale of capital assets - - - - - Miscellaneous 627,198 548,189 195,055 557,690 257,379 Transfers (895,106) 13,475,571 (323,038) (846,119) (482,801) Total business -type activities 7,030,962 26,132,392 7,689,688 5,787,024 1,428,093 Total primary government 82,044,592 91,683,885 96,364,569 93,299,302 91,047,333 CHANGE IN NET POSITION Governmental activities 12,120,086 (6,720,088) 9,623,016 1,204,199 11,701,719 Business -type activities 33,645,948 45,975,816 21,091,971 21,711,534 13,782,618 Total primary government S 45,766,034 S 39,255,728 S 30,714,987 S 22,915,733 S 25,484,337 Source: Comprehensive Annual Financial Reports 1 Sales tax figures in fiscal years 2010 and prior present amounts net of economic incentive payments. 114 Table 2 2011 2012 2013 2014 2015 $44,144,844 $45,174,160 $47,275,552 $48,833,077 $54,174,965 22,871,282 25,886,940 26,522,473 27,764,114 30,601,965 19,324,244 19,336,701 19,901,459 21,001,427 21,996,031 1,513,468 1,555,347 1,910,125 1,982,643 2,156,294 359,671 345,032 392,192 419,498 573,758 21,963 20,889 20,774 20,684 20,380 459,615 581,849 354,089 563,236 759,334 - - - - 707,966 2,370,682 1,390,398 1,428,907 1,980,545 1,220,060 (10,430,082) 887,287 (101,707) 876,525 1,140,938 80,635,687 95,178,603 97,703,864 103,441,749 113,351,691 1,472,078 1,638,830 1,085,856 1,355,730 1,692,971 - - - - 42,455 278,180 (690,967) 511,291 521,013 - 10,430,082 (887,287) 101,707 (876,525) (1,140,938) 12,180,340 60,576 1,698,854 1,000,218 594,488 92,816,027 95,239,179 99,402,718 104,441,967 113,946,179 (2,833,046) (253,629) 15,149,101 14,582,829 16,357,607 45,128,597 29,110,447 20,888,431 18,036,265 38,464,683 $ 42,295,551 $ 28,856,818 $ 36,037,532 $ 32,619,094 $ 54,822,290 115 CITY OF DENTON, TEXAS FUND BALANCES OF GOVERNMENTAL FUNDS LAST TEN FISCAL YEARS (modified accrual basis of accounting) General fund Reserved for encumbrances Unreserved, designated Committed to streets Assigned to use of reserves Unreserved, undesignated, unassigned Total general fund All other governmental funds Reserved for: Debt service Capital projects Encumbrances Unreserved, undesignated reported in: Special revenue funds Restricted for: Debt Service Parks and recreation Streets and drainage projects Other capital projects Other grants and purposes Committed to: Streets Parks and recreation Other purposes Assigned to: Streets and drainage projects Other capital projects Other purposes Unassigned Total all other governmental funds 2006 2007 2008 2009 $ 242,088 $ - $ 123,696 $ - 1,550,000 4,360,649 - - 13,264,027 18,199,161 25,253,797 22,794,955 15,056,115 22,559,810 25,377,493 22,794,955 439,6.58 32,840,640 5,534,701 886,141 48,971,610 8,896,111 1,954,955 57,887,531 5,515 9,534,627 2,414,288 35,339,606 16,435,449 $ 38,814,999 $ 58,753,862 $ 69,382,628 $ 54,189,343 Source: Comprehensive Annual Financial Reports The City adopted GASB Statement No. 54 which changed the classification of governmental fund balances to nonspendable, restricted, committed, assigned, and unassigned. 116 Table 3 2010 2011 2012 2013 2014 2015 - - 44,970,571 - - - - - - 921,779 - - - - - 668,116 664,894 1,377,039 661,545 - 21,526,779 22,834,108 25,171,186 24,378,139 25,176,737 27,365,168 21,526,779 24,424,003 25,836,080 25,755,178 25,838,282 27,365,168 3,354,535 - - - - - 44,970,571 - - - - - 13,838,425 - - - - - - 3,279,080 3,824,438 4,572,807 4,726,841 4,791,880 - 9,561,244 10,496,887 9,220,953 11,584,890 14,288,659 - 21,857,670 22,004,377 23,759,574 25,790,648 42,537,941 - 5,907,877 8,444,073 12,231,061 11,925,978 10,603,695 - 1,223,822 1,789,241 2,223,626 2,465,093 3,218,466 - - 991,942 1,330,184 916,613 1,388,223 - 1,427,717 570,534 590,062 573,429 513,484 - 1,867,639 1,468,837 1,801,661 3,560,159 4,430,392 - 724,241 - 144,485 423,152 2,214,613 - 1,332,105 3,003,344 2,599,101 2,868,390 1,666,029 - 77,341 49,026 56,900 34,847 49,630 - (758,734) (91,145) (8,901) (144,084) (73,857) $ 62,163,531 $ 46,500,002 $ 52,551,554 $ 58,521,513 $ 64,725,956 $ 85,629,155 117 CITY OF DENTON, TEXAS CHANGES IN FUND BALANCES OF GOVERNMENTAL FUNDS LAST TEN FISCAL YEARS (modified accrual basis of accounting) REVENUES: Taxes: Property tax Sales taxi Hotel occupancy tax Beverage tax Bingo tax Licenses and permits Franchise fees Fines and forfeitures Fees for services Investment revenue Intergovernmental Miscellaneous Total revenues EXPENDITURES: General government Public safety Public works Parks and recreation Capital outlay Debt service: Principal retirement Advance refunding escrow Bond issuance costs Interest and other charges Total expenditures Excess (deficiency) of revenues over (under) expenditures OTHER FINANCING SOURCES (USES): Refunding bonds issued Payment to refunded bond escrow agent Issuance of long -term debt Premium on debt issuance Insurance recoveries Proceeds of capital lease Sale of capital assets Transfers in Transfers (out) Total other financing sources (uses) NET CHANGE IN FUND BALANCES Debt service as a percentage of noncapital expenditures Source: Comprehensive Annual Financial Reports 2006 2007 2008 2009 $ 30,019,657 $ 34,662,336 $ 41,436,012 $ 42,980,209 20,343,413 20,653,932 21,440,839 20,466,772 1,132,500 1,268,627 1,369,667 1,239,261 257,950 294,623 319,541 338,700 24,260 23,708 23,653 22,915 1,383,169 1,097,323 1,080,580 1,265,733 16,499,994 15,197,943 16,197,042 15,669,981 4,639,922 5,065,049 5,262,189 4,972,905 6,779,904 7,624,265 7,951,665 7,595,440 1,967,473 3,632,744 3,287,282 2,415,817 5,254,058 3,852,513 8,094,307 4,049,439 3,424,786 3,006,751 3,778,673 3,183,891 91,727,086 96,379,814 110,241,450 104,201,063 20,539,006 20,158,739 24,110,329 25,223,041 35,813,329 37,755,272 40,855,112 42,540,423 5,206,224 5,624,287 6,596,191 6,753,314 9,548,416 10,234,361 11,557,168 11,444,577 9,056,102 17,237,922 23,275,703 21,863,647 5,914,819 6,808,439 8,479,136 9,479,243 - - - 148,575 70,745 314,286 530,137 105,392 4,210,628 4,389,307 5,261,346 5,570,770 90,359,269 102,522,613 120,665,122 123,128,982 1,367,817 (6,142,799) (10,423,672) (18,927,919) - 24,780,000 24,595,000 6,120,000 - - (25,117,336) (6,265,255) 9,550,000 - 22,230,000 - 49,644 528,630 937,755 246,012 - 1,108,131 69,897 - - - 582,087 44,865 4,095,018 12,323,132 2,406,678 10,286,496 (2,857,338) (5,154,536) (1,833,960) (9,280,022) 10,837,324 33,585,357 23,870,121 1,152,096 $ 12,205,141 1 $ 271442,558 $ 13,446,449 $ (17,775,823) 12.5% 13.1% 14.1% 14.9% 1 Sales tax figures in fiscal years 2010 and prior present amounts net of economic incentive payments. 118 Table 4 2010 2011 2012 2013 2014 2015 $ 43,326,427 $ 44,147,706 $ 45,116,485 $ 47,330,522 $ 48,872,016 $ 54,230,541 20,484,954 22,871,282 25,886,940 26,522,473 27,764,114 30,601,965 1,302,617 1,513,468 1,555,347 1,910,125 1,982,643 2,156,294 347,940 359,671 345,032 392,192 419,498 573,758 22,611 21,963 20,889 20,774 20,684 20,380 1,198,552 1,460,548 1,436,215 1,446,580 1,978,421 2,782,395 17,457,994 19,324,244 19,336,701 19,901,459 21,001,427 21,996,031 4,828,159 4,929,110 5,462,133 5,342,966 6,261,579 6,505,175 12,244,258 8,395,583 8,519,763 8,683,278 10,187,195 9,391,260 684,709 459,615 581,849 354,089 563,236 759,334 16,639,038 10,896,063 6,739,864 9,914,834 10,986,128 10,236,689 1,002,133 1,911,634 1,171,618 1,322,762 2,648,160 1,387,127 119,539,392 116,290,887 116,172,836 123,142,054 132,685,101 140,640,949 26,909,485 25,784,296 24,359,018 25,047,062 28,188,722 29,277,275 44,398,442 46,561,747 48,118,051 51,303,825 53,380,064 55,978,174 6,517,717 7,483,926 8,608,554 9,425,446 9,979,997 12,439,131 11,072,061 10,913,450 11,315,951 12,274,908 12,808,701 13,277,516 14,164,662 12,937,053 10,983,987 20,038,064 20,660,461 23,712,400 9,277,804 9,670,892 9,770,660 10,017,719 10,703,071 11,918,983 - - 130,111 110,145 - 120,519 78,919 29,156 163,811 181,308 86,800 181,409 5,095,245 5,070,734 4,758,305 4,552,348 4,741,257 4,647,528 117,514,335 118,451,254 118,208,448 132,950,825 140,549,073 151,552,935 2,025,057 (2,160,367) (2,035,612) (9,808,771) (7,863,972) (10,911,986) 3,460,000 - 10,173,303 6,182,405 3,130,000 14,290,000 (3,774,764) - (11,432,581) (6,547,180) (3,194,293) (15,604,758) 6,905,000 5,680,000 8,020,000 14,765,000 12,635,000 29,240,000 498,682 32,628 2,016,193 1,232,674 635,037 3,214,914 - - 19,961 - - - 160,495 303,307 153,127 148,417 85,059 715,685 5,815,769 1,968,253 4,741,735 2,980,448 3,596,433 4,557,824 (8,384,227) (7,915,382) (4,192,497) (3,063,936) (2,735,717) (3,071,594) 4,680,955 68,806 9,499,241 15,697,828 14,151,519 33,342,071 $ 6,706,012 $ (2,091,561) $ 7,463,629 $ 5,889,057 $ 6,287,547 $ 22,430,085 13.9% 14.0% 13.6% 12.9% 12.9% 13.0% um CITY OF DENTON, TEXAS ASSESSED VALUE AND ESTIMATED ACTUAL VALUE OF TAXABLE PROPERTY LAST TEN FISCAL YEARS Fiscal Year 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Estimated Market Value Real Property $ 4,876,565,660 5,475,770,871 6,159,567,238 6,443,103,507 6,619,118,472 6,744,096,534 6,903,311,493 7,083,330,127 7,427,124,969 8,285,049,321 Personal Property $ 733,405,037 952,273,984 969,219,527 938,547,047 922,539,801 879,202,496 933,580,101 1,125,646,116 1,161,189,421 1,329,999,883 Source: Denton Central Appraisal District Table 5 Less: Total Taxable Total Direct Tax - Exempt Assessed Tax Property Value Rate $ 820,593,886 $ 4,789,376,811 $ 0.60815 986,815,946 5,441,228,909 0.62652 1,039,286,990 6,089,499,775 0.66652 1,090,291,442 6,291,359,112 0.66652 1,213,749,251 6,327,909,022 0.66652 1,393,181,072 6,230,117,958 0.68975 1,424,516,590 6,230,117,958 0.68975 1,492,264,875 6,716,711,368 0.68975 1,609,090,116 6,979,224,274 0.68975 1,817,871,596 7,797,177,608 0.68975 120 121 CITY OF DENTON, TEXAS PROPERTY TAX RATES (PER $100 OF ASSESSED VALUE) DIRECT AND OVERLAPPING' GOVERNMENTS LAST TEN FISCAL YEARS 122 Denton Argyle City of Denton Independent Independent Fiscal Operating Debt Service Total Denton School School Year Rate Rate Direct Rate County District District 2006 $ 0.42928 $ 0.17887 $ 0.60815 $ 0.246480 $ 1.86400 $ 1.919500 2007 0.44765 0.17887 0.62652 0.231920 1.76400 1.769430 2008 0.44765 0.21887 0.66652 0.235890 1.43400 1.410050 2009 0.44765 0.21887 0.66652 0.235770 1.49000 1.410050 2010 0.44765 0.21887 0.66652 0.249800 1.49000 1.410050 2011 0.47088 0.21887 0.68975 0.273900 1.53000 1.440050 2012 0.47088 0.21887 0.68975 0.277357 1.53000 1.460050 2013 0.47088 0.21887 0.68975 0.282867 1.53000 1.480050 2014 0.47480 0.21495 0.68975 0.284914 1.53000 1.475000 2015 0.48119 0.20856 0.68975 0.272200 1.54000 1.570050 Source: Denton County Tax Office Denton County Central Appraisal District 'Overlapping rates are those of the school district and county government that apply to property owners within the City of Denton. 122 Table 6 Overlapping Rates School Districts Aubrey Krum Pilot Point Ponder Sanger Total Direct Independent Independent Independent Independent Independent & Overlapping School School School School School Rates District District District District District (Range) $ 1.838800 $ 1.725000 $ 1.744200 $ 1.724650 $ 1.780000 $ 2.579280 - 2.774130 1.666600 1.595500 1.630000 1.552610 1.650000 2.411050 - 2.627870 1.398060 1.365500 1.300000 1.228210 1.340000 2.130620 - 2.336410 1.485600 1.365500 1.390000 1.321220 1.370000 2.223510 - 2.392290 1.540000 1.440000 1.370000 1.309028 1.360000 2.225348 - 2.456320 1.540000 1.480000 1.370000 1.324890 1.360000 2.288540 - 2.503650 1.540000 1.540000 1.370000 1.344610 1.372067 2.311717 - 2.507107 1.540000 1.520000 1.370000 1.353292 1.372067 2.325909 - 2.512617 1.510000 1.540000 1.370000 1.385000 1.372070 2.344664 - 2.514664 1.510000 1.540000 1.370000 1.380800 1.372067 2.331950 - 2.532000 123 CITY OF DENTON, TEXAS PRINCIPAL PROPERTY TAXPAYERS CURRENT YEAR AND NINE YEARS AGO 2015 Percentage of Taxable Total Taxable Assessed Assessed Name of Taxpayer Value Values Columbia Medical Center of Denton (Denton Regional Hospital) $92,209,540 1.18% PACCAR Inc. (Peterbilt) 92,014,123 1.18% Target Corporation (Distribution Center) 56,082,415 0.72% Denton Fry LLC (Fry Street Village apartments) 51,167,423 0.66% Inland Western Crossing (Denton Crossing) 50,684,356 0.65% Cypress Denton Station LTD (Forum at Denton Station Apartments) 45,936,000 0.59% RR Marketplace LP (Rayzor Ranch North Shopping Center) 35,910,782 0.46% HRA University Courtyard LLC (University Courtyard Apartments) 31,855,383 0.41% Flowers Baking Company of Denton LLC 29,332,172 0.38% Verizon Southwest (Telephone Company) 28,236,000 0.36% Total $ 513,428,194 6.58% Source: Denton Central Appraisal District Table 7 2006 Percentage of Taxable Total Taxable Assessed Assessed Name of Taxpayer Value Value Presbyterian Hospital (Hospital and professional building) $81,221,477 1.70% Columbia Medical Center of Denton (Denton Regional Hospital) 70,945,611 1.48% Anderson Merchandisers (Distribution Center) 43,891,066 0.92% PACCAR Inc. (Peterbilt) 43,267,721 0.90% United Copper Industries (Copper Wire Plant) 43,231,435 0.90% Sally Beauty Supply (Manufacturer and Professional Building) 36,816,776 0.77% Verizon Southwest (Telephone Company) 36,062,542 0.75% Inland Western Crossing (Denton Crossing) 30,829,230 0.64% BRE Timber Links at Denton Apartments 28,436,559 0.59% James Wood Motors (Automobile Dealership) 24,500,082 0.51% Total $ 439,202,499 9.17% 1Total taxable assessed value for tax year 2014 (fiscal year 2015) is $7,797,177,608 Total taxable assessed value for tax year 2005 (fiscal year 2006) is $4,789,376,811 124 125 CITY OF DENTON, TEXAS PROPERTY TAX LEVIES AND COLLECTIONS LAST TEN FISCAL YEARS Taxes Levied Adjustments Within the to Levy in Fiscal Fiscal Year Subsequent Year of the Levy Years 2006 S 29,545,033 S 2007 34,273,862 2008 40,816,256 2009 43,086,123 2010 42,898,414 2011 43,890,121 2012 44,856,277 2013 46,965,495 2014 48,398,900 2015 53,829,793 Source: Denton Central Appraisal District 124,923 329,953 46,131 58,270 58,646 (6,992) (10,280) (2,170) 15,773 S Adjusted Taxes Levied for the Fiscal Year 29,669,956 34,603,815 40,862,387 43,144,393 42,957,060 43,883,129 44,845,997 46,963,325 48,414,673 53,829,793 126 Collected Within the Fiscal Year of the Lev Collections in Subsequent 686,032 449,350 622,983 413,835 346,943 280,536 191,215 155,136 Percentage Amount of Levy _ S 29,162,978 98.29% $ 33,872,404 97.89% 40,354,528 98.76% 42,423,707 98.33% 42,448,364 98.82% 43,447,508 99.01% 44,461,501 99.14% 46,638,975 99.31% 48,083,910 99.32% 53,503,029 99.39% Collections in Subsequent 686,032 449,350 622,983 413,835 346,943 280,536 191,215 155,136 Table 8 Total Collections to Date Amount Percentage of Levy $ 29,629,161 99.86% 34,558,436 99.87% 40,803,878 99.86% 43,046,690 99.77% 42,862,199 99.78% 43,794,451 99.80% 44,742,037 99.77% 46,830,190 99.72% 48,239,046 99.64% 53,503,029 99.39% 127 CITY OF DENTON, TEXAS RATIO OF OUTSTANDING DEBT BY TYPE LAST TEN FISCAL YEARS Source: Comprehensive Annual Financial Reports Note: Details regarding the City's outstanding debt can be found in the notes to the financial statements. 1See Table 13 for personal income and population data. 128 Governmental Activities Business -Type Activities General Certificates General Certificates Fiscal Obligation of Premiums, Other Revenue Obligation of Year Bonds Obligation Discounts Obligations Bonds Bonds Obligation 2006 S 58,742,900 S 46,700,000 S 418,591 S 3,559,742 S 277,305,000 S 3,582,100 S 11,975,000 2007 70,650,317 51,355,100 849,575 2,393,684 281,750,000 3,099,683 13,889,900 2008 80,814,594 55,097,550 1,645,160 1,819,298 282,200,000 4,865,406 12,952,450 2009 77,358,650 48,611,150 1,658,410 2,769,671 266,705,000 4,366,350 11,243,850 2010 77,314,650 45,727,950 1,798,093 1,771,952 209,885,000 39,600,350 126,207,050 2011 73,395,650 43,036,419 1,475,673 1,879,906 187,525,000 47,209,350 150,553,581 2012 80,013,439 33,910,342 3,272,887 1,891,895 156,855,000 59,301,561 181,314,658 2013 80,719,761 37,514,485 3,737,386 983,249 144,225,000 55,970,239 222,955,515 2014 78,316,161 41,570,000 3,593,057 1,102,864 112,170,000 79,188,839 290,640,000 2015 95,019,058 41,590,000 6,039,823 2,079,227 63,340,000 108,585,942 359,375,000 Source: Comprehensive Annual Financial Reports Note: Details regarding the City's outstanding debt can be found in the notes to the financial statements. 1See Table 13 for personal income and population data. 128 Table 9 129 Total Percentage Premiums, Other Primary of Personal Per Discounts Obligations Government Incomes Capital $ 7,419,303 $ 3,141,222 $ 412,843,858 0.01698% $ 3,864.02 6,836,909 7,032,986 437,858,154 0.01810% 4,017.78 6,265,197 5,713,041 451,372,696 0.01786% 4,060.57 5,586,295 3,161,549 421,460,925 0.01708% 3,717.14 14,799,674 1,824,177 518,928,896 0.01980% 4,531.46 13,078,316 1,279,130 519,433,025 0.02087% 4,490.96 17,869,148 713,408 535,142,338 0.02150% 4,626.78 18,645,703 363,487 565,114,825 0.02040% 4,813.71 23,263,019 - 629,843,940 0.02145% 5,285.79 27,564,104 - 703,593,154 0.02398% 5,817.46 129 CITY OF DENTON, TEXAS RATIO OF GENERAL BONDED DEBT OUTSTANDING LAST TEN FISCAL YEARS General Bonded Debt Outstand General Certificates Fiscal Obligation of Year Bonds Obligation 2006 $ 62,325,000 $ 58,675,000 2007 73,750,000 65,245,000 2008 85,680,000 68,050,000 2009 81,725,000 59,855,000 2010 116,915,000 171,935,000 2011 120,605,000 193,590,000 2012 139,315,000 215,225,000 2013 136,690,000 260,470,000 2014 157,505,000 332,210,000 2015 203,605,000 400,965,000 General Bonded Debt Outstand Source: Comprehensive Annual Financial Reports Table 10 Less: Amounts Less: Amounts Percentage of Available Premiums, in Debt Discounts Service Fund $ 443,123 $ 439,658 905,607 886,141 1,758,493 1,954,955 1,779,105 2,414,288 11,933,474 3,354,535 10,580,069 3,279,080 18,283,190 3,824,438 20,029,829 4,572,807 25,434,647 4,726,841 33,414,816 4,791,879 Source: Comprehensive Annual Financial Reports Table 10 Less: Amounts Percentage of Payable from Actual Taxable Business -Type Value of Per Activity Debt Total Property' Capital $ 15,581,632 $ 105,421,833 2.20% $ 1,019.20 17,045,615 121,968,851 2.24% 1,141.57 17,931,189 135,602,349 2.23% 1,244.29 15,730,895 125,213,922 1.99% 1,126.43 175,942,781 121,486,158 1.92% 1,071.47 206,867,327 114,628,662 1.84% 1,000.98 255,626,522 113,372,230 1.82% 980.20 295,218,197 117,398,825 1.75% 1,000.02 391,670,429 118,752,377 1.70% 996.60 495,335,935 137,857,002 1.77% 1,139.83 Note: Details regarding the City's outstanding debt can be found in the notes to the financial statements. 'See Table 5 for property value data. 2See Table 13 for population data. 130 CITY OF DENTON, TEXAS DIRECT AND OVERLAPPING GOVERNMENTAL ACTIVITIES DEBT AS OF SEPTEMBER 30, 2015 Governmental Unit Debt repaid with property taxes: Estimated Debt Percentage Outstanding Applicable' Table 11 Estimated Share of Overlapping Debt Denton Independent School District $ 735,851,832 64.24% $ 472,711,217 Denton County 609,410,000 12.26% 74,713,666 Argyle Independent School District 86,508,373 9.26% 8,010,675 Aubrey Independent School District 50,720,143 0.01% 5,072 Krum Independent School District 44,062,367 4.15% 1,828,588 Pilot Point Independent School District 17,645,000 0.11% 19,410 Ponder Independent School District 24,195,000 2.78% 672,621 Sanger Independent School District 22,978,207 1.02% 234,378 Subtotal, overlapping debt 558,195,627 City of Denton, direct debt 100.00% 144,728,108 Total direct and overlappping debt $ 702,923,735 Ratio of direct and overlapping funded debt to the City's taxable assessed valuation 9.02% Per capita overlapping funded debt $ 5,812 Source: Compiled by First Southwest Company using data from the "Texas Municipal Report" prepared for the Municipal Advisory Council. Note: Overlapping governments are those that coincide, at least in part, with the geographic boundaries of the city. This schedule estimates the portion of the outstanding debt of those overlapping governments that is borne by the residents and businesses of the City of Denton. This process recognizes that, when considering the City of Denton's ability to issue and repay long -term debt, the entire debt burden borne by the residents and businesses should be taken into account. However, this does not imply that every taxpayer is a resident, and therefore responsible for repaying the debt, of each overlapping government. 'The percentage of overlapping debt applicable is estimated using taxable assessed property values. Applicable percentages were estimated by determining the portion of the overlapping government's taxable assessed value that is within the City of Denton's boundaries and dividing it by the overlapping government's total taxable assessed value. 131 CITY OF DENTON, TEXAS PLEDGED REVENUE COVERAGE LAST TEN FISCAL YEARS Revenue Bonds Source: Comprehensive Annual Financial Reports IThe Utility System includes the Electric, Water, and Wastewater funds. 2For the coverage calculation, the fair market adjustment to the value of investments is excluded. 3For the coverage calculation, franchise fees and return on investment payments to the General Fund are excluded from operating expenses. 4Revenue bond covenants require a times coverage of 1.25 or greater. -S Total times coverage provided to assess total bond debt related to the Utility System. 132 Less: Add: Fair Market Less: Franchise Fees Value Operating and Return Adjustment Expenses on Investment Fiscal Operating Investment to Investment Impact Fee Before Paid to Year Revenue Revenue Revenue Revenue Depreciation General Fund 2006 $ 200,970,560 $ 7,061,556 $ 721,058 $ 5,556,349 $ 166,537,867 $ 12,839,184 2007 173,879,713 11,390,142 2,710,742 5,558,985 142,890,603 11,283,647 2008 185,874,450 7,458,605 69,292 6,620,938 158,245,885 11,862,151 2009 176,464,357 5,817,918 930,936 4,456,827 147,392,056 11,325,647 2010 166,295,694 1,593,161 (550,830) 3,186,225 137,201,402 12,828,293 2011 186,359,226 1,340,539 (66,712) 5,205,889 136,774,866 14,304,393 2012 189,645,277 1,477,452 110,626 3,542,829 139,801,421 14,414,769 2013 197,126,041 983,424 (227,534) 3,704,336 164,688,198 14,582,800 2014 208,666,178 1,225,879 46,226 5,191,886 175,620,125 15,278,150 2015 229,583,483 1,512,820 156,230 6,476,021 175,131,645 16,356,904 Source: Comprehensive Annual Financial Reports IThe Utility System includes the Electric, Water, and Wastewater funds. 2For the coverage calculation, the fair market adjustment to the value of investments is excluded. 3For the coverage calculation, franchise fees and return on investment payments to the General Fund are excluded from operating expenses. 4Revenue bond covenants require a times coverage of 1.25 or greater. -S Total times coverage provided to assess total bond debt related to the Utility System. 132 Table 12 133 Certificate of Obligation & Net Revenue Bond Debt General Obligation Bond Debt Total Available Times Times Times Revenue Principal Interest Coverage Principal Interest Coverage Coverages $ 59,168,724 $ 12,330,000 $ 13,798,811 2.26 $ - $ - N/A 2.26 56,511,142 13,325,000 12,265,461 2.21 - - N/A 2.21 53,500,967 14,840,000 13,088,928 1.92 - - N/A 1.92 49,741,757 15,670,000 13,073,992 1.73 - - N/A 1.73 47,252,801 15,935,000 12,267,799 1.68 - - N/A 1.68 70,501,893 13,180,000 9,208,682 3.15 4,610,000 7,315,189 5.91 3.15 69,168,280 8,460,000 7,982,284 4.21 11,880,000 7,477,233 3.57 1.93 51,935,937 12,630,000 7,028,800 2.64 9,940,000 9,115,348 2.73 1.34 54,695,742 13,260,000 6,437,088 2.78 11,860,000 10,306,245 2.47 1.31 78,641,353 11,570,000 4,902,319 4.77 15,535,000 14,115,713 2.65 1.71 133 CITY OF DENTON, TEXAS DEMOGRAPHIC AND ECONOMIC STATISTICS LAST TEN FISCAL YEARS Fiscal E Estimated P Personal P Per Capita M Median G Grade School U University Year P Population) I Income I Income Agee E Enrollment E Enrollment Table 13 Unemployment 5 3.4% 4.4% 6.5% 6.3% 6.7% 5.0% 4.9% 3.9% 3.2% Sources: 1City of Denton Planning and Development Department estimate. Prior population figures have been adjusted to reflect the 2010 census data. United States Census and Denton Chamber of Commerce DDenton Independent School District UUniversity of North Texas' and Texas Woman's University's Denton campus enrollment 5Texas Workforce Commission estimate 134 CITY OF DENTON, TEXAS PRINCIPAL EMPLOYERS CURRENT YEAR AND NINE YEARS AGO 2015 Texas Woman's University 1,672 Percentage Denton County of Total City Name of Employer Employees Employment University of North Texas 8,738 13.51% Denton Independent School 1,508 2.33% Federal Emergency 3,800 5.87% District Peterbilt Motors - 1,076 1.66% Denton 2,100 3.25% Headquarters & Plant 950 1.47% Denton State School 1,700 2.63% Texas Woman's University 1,672 2.58% Denton County of Total City Name of Employer 1,581 2.44% (in Denton) 7,351 12.78% City of Denton 1,508 2.33% Federal Emergency 1,100 1.70% Management Agency Presbyterian Hospital of 1,076 1.66% Denton 2,000 3.48% Denton Regional Medical 950 1.47% Center 1,450 2.52% Total 24,225 37.44% Source: Office of Economic Development & Denton Chamber of Commerce 135 Table 14 2006 Denton Community (Presbyterian) Hospital Total 750 1.30% 19,895 34.60% Percentage of Total City Name of Employer Employees Employment University of North Texas 7,351 12.78% Denton Independent 2,600 o 4.52 /o School District Paccar, Inc. ( Peterbilt 2,000 3.48% Motors) Denton State School 1,450 2.52% Denton County (in 1,441 2.51% Denton) City of Denton 1,244 2.16% Texas Woman's 1,159 2.02% University Federal Emergency 1,100 1.91% Management Agency Denton Regional Medical Center 800 1.39% Denton Community (Presbyterian) Hospital Total 750 1.30% 19,895 34.60% CITY OF DENTON, TEXAS FULL -TIME EQUIVALENT CITY GOVERNMENT EMPLOYEES BY FUNCTION /PROGRAM LAST TEN FISCAL YEARS Full -time Equivalent Employees for Fiscal Year Function / Program 2006 2007 2008 2009 2010 General government Public safety Police Fire Animal services Municipal Court /Judge Public works Parks and recreation Electric system Water system Wastewater system Solid waste Airport Materials management Fleet services Technology services Engineering Risk Retention Total Source: City of Denton Budget Office 176.00 175.88 180.63 191.63 194.63 206.23 212.23 217.23 217.23 217.23 162.25 162.25 162.25 163.25 163.25 8.00 8.00 8.00 8.00 8.00 16.50 16.50 16.75 16.75 17.50 37.00 38.00 39.00 39.00 39.00 141.85 142.07 144.15 144.15 143.08 110.50 112.00 120.50 125.00 129.50 161.75 164.50 165.00 160.50 158.00 83.12 82.87 83.37 84.87 86.37 85.00 87.00 88.00 93.50 93.50 12.50 12.50 12.50 13.50 13.50 17.00 18.00 19.00 21.00 21.00 26.00 24.50 25.00 25.00 25.00 - 5.00 5.00 5.00 5.00 1,243.70 11261.30 11286.38 1,308.38 1,314.56 136 Table 15 2011 2012 2013 2014 2015 195.00 204.25 210.25 210.25 218.75 222.23 217.23 219.23 225.23 228.23 163.25 163.25 167.75 167.75 168.25 8.00 9.00 11.00 11.00 13.00 18.50 19.50 19.50 19.50 19.00 39.00 41.00 44.00 46.00 49.50 142.58 141.08 143.35 145.81 145.81 129.50 131.50 143.00 164.00 174.00 158.50 158.00 154.00 133.50 140.50 88.37 92.37 97.25 100.75 108.75 98.50 105.50 115.00 117.00 120.00 5.00 5.50 6.50 6.50 7.50 13.50 12.00 13.00 15.00 15.00 21.00 22.00 22.00 22.00 22.00 26.00 27.00 29.00 31.00 36.00 - - - 31.00 34.00 5.00 6.00 6.00 6.00 8.00 1,333.93 1,355.18 1,400.83 1,452.29 1,508.29 137 CITY OF DENTON, TEXAS OPERATING INDICATORS BY FUNCTION/PROGRAM LAST TEN FISCAL YEARS Function / Program Public Safety Police Calls for service Traffic citations issued Fire Fire calls for service EMS calls for service Inspections (Businesses) Animal Services Animals sheltered Animals adopted, transferred, or returned Public Works Street repaving (lane miles) Pot holes repaired Cutouts base failures (square feet) Crack seal maintenance (linear feet) Parks and Recreation Attendance Leisure Services Water Park Total Acres Maintained Water System Number of customers Annual finished water production (in thousand gallons) Wastewater System Number of customers Annual wastewater discharge (in thousand gallons) Solid Waste Number of customers (residential and commercial) MSW Landfilled (tons) Recycling collections (tons) Source: Various city departments Fiscal Year 2006 2007 2008 2009 73,346 74,397 80,117 83,557 39,483 31,131 31,610 36,598 3,495 3,539 3,703 3,391 6,840 6,544 6,862 7,017 3,882 3,144 3,591 3,622 4,443 5,427 4,967 4,341 2,167 2,297 2,119 2,193 16.41 23.38 41.28 17.43 3,971 8,153 6,841 11,593 171,543 44,566 75,877 126,691 79,314 42,624 40,288 55,894 985,778 1,048,500 1,010,351 1,031,530 162,039 163,000 169,000 179,386 2,262 2,293 2,633 2,633 27,884 28,898 29,679 30,288 7,097,403 5,671,124 6,582,151 6,210,472 26,079 27,185 28,019 28,647 4,428,700 5,174,100 5,263,780 4,733,839 27,805 28,954 30,680 31,173 114,060 128,644 136,024 160,378 17,762 21,179 24,248 44,540 138 Table 16 2010 2011 2012 2013 2014 2015 83,746 84,899 81,104 81,084 83,704 84,434 33,990 29,162 28,327 30,166 27,160 22,022 3,199 3,423 3,316 3,845 4,183 3,933 7,255 7,458 7,657 7,717 7,977 8,079 4,739 4,370 4,310 4,366 4,830 4,066 5,042 4,936 5,467 5,420 5,072 4,876 3,264 3,730 4,332 4,209 3,895 3,870 10.27 8.33 15.43 10.26 25.59 18.21 20,988 10,535 10,807 7,227 8,996 11,872 169,396 146,925 102,879 114,448 72,098 99,085 53,712 116,556 117,780 155,838 77,451 59,115 1,153,632 1,093,705 969,858 909,395 1,060,988 967,132 193,361 200,553 212,123 215,605 209,406 218,232 2,633 2,570 2,405 2,272 2,425 2,469 30,889 31,222 31,372 31,837 32,405 33,465 6,209,966 7,331,902 6,750,840 6,827,186 6,155,724 6,355,608 29,105 29,519 29,772 30,103 30,562 31,243 5,617,490 4,852,097 4,966,250 4,943,270 4,926,080 5,834,100 32,044 32,621 33,049 34,003 36,593 37,540 140,284 149,930 164,436 176,076 203,928 227,859 50,246 73,912 86,887 96,055 87,655 81,558 139 CITY OF DENTON, TEXAS CAPITAL ASSET STATISTICS BY FUNCTION /PROGRAM LAST TEN FISCAL YEARS Function / Program Public safety Police Police stations Police patrol units Fire Fire stations Emergency vehicles Animal services Animals shelters Public works Lane miles added per year Streetlights Parks and recreation Parks Park acreage Recreation centers Water system Water mains (miles) Raw water (in thousand gallons) Wastewater system Wastewater mains (miles) Maximum daily capacity (in million gallons) Solid waste Landfills Source: Various city departments Fiscal Year 2006 2007 2008 2009 2010 1 1 1 1 1 149 149 147 149 149 6 7 7 7 7 22 24 24 26 30 1 1 1 1 1 25.34 22.66 10.10 14.79 41.77 7,118 7,008 7,011 7,015 7,016 37 37 37 37 37 1,272 1,218 1,292 1,438 1,341 13 13 13 13 13 520 530 533 550 558 7,322,361 5,801,994 6,694,734 6,471,258 6,416,086 459 470 481 488 495 21 21 21 25 25 1 1 1 1 1 140 Table 17 2011 2012 2013 2014 2015 1 1 1 1 1 143 139 137 138 137 7 7 7 7 7 30 30 31 31 32 1 1 1 1 1 1.56 2.45 12.00 12.20 5.83 6,996 6,987 7,020 7,067 7,164 37 37 37 37 37 1,332 1,431 1,461 1,783 1,783 13 13 13 13 13 560 565 572 592 604 7,572,149 7,013,351 6,776,717 6,195,624 6,493,457 496 501 509 513 516 25 25 25 25 25 1 1 1 1 1 141 142 CITY OF DENTON, TEXAS Exhibit XXXIV SCHEDULE OF EXPENDITURES - BUDGET AND ACTUAL GENERAL FUND FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2015 Personal Service 254,988 254,988 255,842 Variance with Materials and Supplies 991 991 Actual on a Final Budget - Maintenance and Repairs Budgeted Amounts 1,500 Budgetary Positive Insurance Original Final Basis (Negative) EXPENDITURES: Miscellaneous 350 350 1,029 Personal Service $ 2,392,436 $ 2,377,536 $ 2,312,812 $ 64,724 Materials and Supplies 40,788 40,788 24,031 16,757 Maintenance and Repairs 19,980 23,880 21,290 2,590 Insurance 18,602 18,602 18,602 - Miscellaneous 58,075 52,125 84,238 (32,113) Operations, Services 119,954 130,954 156,995 (26,041) Transfers - Interfund 125,012 125,012 125,012 - City Manager's Office 2,774,847 2,768,897 2,742,980 25,917 Personal Service 254,988 254,988 255,842 (854) Materials and Supplies 991 991 2,177 (1,186) Maintenance and Repairs 1,500 1,500 - 1,500 Insurance 3,780 3,780 3,780 - Miscellaneous 350 350 1,029 (679) Operations, Services 22,936 22,936 14,925 8,011 Transfers - Interfund 29,062 29,062 29,062 - Cable Television 313,607 313,607 306,815 6,792 Operations, Services 75,000 75,000 29,206 45,794 Internal Audit 75,000 75,000 29,206 45,794 Personal Service 300,896 300,896 278,826 22,070 Materials and Supplies 25,280 25,280 33,054 (7,774) Insurance 3,361 3,361 3,361 - Operations, Services 108,035 108,035 95,147 12,888 Transfers - Interfund 19,540 19,540 19,540 - Public Communications 457,112 457,112 429,928 27,184 Personal Service 1,087,267 1,087,267 1,082,699 4,568 Materials and Supplies 31,121 31,121 20,299 10,822 Maintenance and Repairs 500 500 - 500 Insurance 14,523 14,523 14,523 - Miscellaneous 53,373 53,373 40,770 12,603 Operations, Services 287,374 225,374 175,381 49,993 Transfers - Interfund 91,365 153,365 153,365 - Human Resources $ 1,565,523 $ 1,565,523 $ 1,487,037 $ 78,486 (continued) 143 CITY OF DENTON, TEXAS SCHEDULE OF EXPENDITURES - BUDGET AND ACTUAL GENERAL FUND FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2015 Exhibit XXXIV 144 Variance with Actual on a Final Budget - Budgeted Amounts Budgetary Positive Original Final Basis (Negative) EXPENDITURES: Personal Service $ 1,871,569 $ 1,871,569 $ 1,837,340 $ 34,229 Materials and Supplies 12,086 12,086 41,311 (29,225) Insurance 14,339 14,339 14,339 - Operations, Services 201,234 201,234 454,056 (252,822) Transfers - Interfund 77,660 77,660 77,660 - Fixed Assets 17,774 17,774 - 17,774 Legal Administration 2,194,662 2,194,662 2,424,706 (230,044) Personal Service 393,041 393,041 324,290 68,751 Materials and Supplies 4,943 4,153 1,644 2,509 Maintenance and Repairs - 120 119 1 Insurance 4,934 4,934 4,934 - Operations, Services 4,478 5,148 4,810 338 Transfers - Interfund 35,320 71,863 71,863 - Municipal Judge 442,716 479,259 407,660 71,599 Personal Service 1,875,348 1,875,348 1,723,950 151,398 Materials and Supplies 51,032 51,032 63,926 (12,894) Insurance 21,861 21,861 21,861 - Miscellaneous 36,981 26,981 32,478 (5,497) Operations, Services 195,849 163,849 121,650 42,199 Transfers - Interfund 249,741 281,741 291,741 (10,000) Planning 2,430,812 2,420,812 2,255,606 165,206 Personal Service 1,950,893 1,950,893 1,769,631 181,262 Materials and Supplies 55,450 52,407 53,285 (878) Maintenance and Repairs 9,634 22,885 16,447 6,438 Insurance 24,420 24,420 24,421 (1) Miscellaneous - - 28 (28) Operations, Services 99,623 89,415 70,866 18,549 Transfers - Interfund 266,575 312,335 312,335 - Fixed Assets 45,760 - - - Building Inspections 2,452,355 2,452,355 2,247,013 205,342 Personal Service 198,246 198,246 199,335 (1,089) Materials and Supplies 230,840 230,840 241,407 (10,567) Maintenance and Repairs 3,000 3,000 2,617 383 Insurance 2,390 2,390 2,390 - Operations, Services 4,146 4,146 4,042 104 Transfers - Interfund 25,206 25,206 25,206 - Reprographics 463,828 463,828 474,997 (11,169) Personal Service 358,935 358,935 253,598 105,337 Materials and Supplies 2,592 2,592 1,216 1,376 Insurance 4,757 4,757 4,757 - Miscellaneous 250 250 54,790 (54,540) Operations, Services 20,918 20,918 12,411 8,507 Transfers - Interfund 33,052 33,052 33,052 - Gas Well Review $ 420,504 $ 420,504 $ 359,824 $ 60,680 (continued) 144 CITY OF DENTON, TEXAS SCHEDULE OF EXPENDITURES - BUDGET AND ACTUAL GENERAL FUND FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2015 Exhibit XXXIV 145 Variance with Actual on a Final Budget - Budgeted Amounts Budgetary Positive Original Final Basis (Negative) EXPENDITURES: Personal Service $ 1,098,163 $ 1,098,163 $ 1,004,289 $ 93,874 Materials and Supplies 50,640 50,640 37,356 13,284 Maintenance and Repairs - - 210 (210) Insurance 41,661 41,661 41,661 - Miscellaneous - - 28 (28) Operations, Services 288,221 258,221 210,781 47,440 Transfers - Interfund 127,116 157,116 157,116 - Community Improvement 1,605,801 1,605,801 1,451,441 154,360 Personal Service 1,178,363 1,178,363 1,092,870 85,493 Materials and Supplies 76,798 70,798 60,028 10,770 Maintenance and Repairs 15,500 12,782 9,230 3,552 Insurance 18,620 18,620 18,620 - Miscellaneous 5,300 5,300 1,500 3,800 Operations, Services 53,561 49,279 46,381 2,898 Transfers - Interfund 112,403 154,193 154,193 - Municipal Court 1,460,545 1,489,335 1,382,822 106,513 Personal Service 2,471,795 2,471,795 2,453,286 18,509 Materials and Supplies 105,393 97,528 50,090 47,438 Maintenance and Repairs 675 675 675 - Insurance 24,462 24,462 24,462 - Miscellaneous 1,915 1,915 3,552 (1,637) Operations, Services 794,177 802,042 780,112 21,930 Transfers - Interfund 145,086 145,086 145,086 - Finance 3,543,503 3,543,503 3,457,263 86,240 Personal Service 622,523 620,123 554,973 65,150 Materials and Supplies 38,234 38,234 32,440 5,794 Maintenance and Repairs 576 576 576 - Insurance 9,034 9,034 9,034 - Miscellaneous 209,092 201,092 177,426 23,666 Operations, Services 2,109,164 2,138,564 1,941,251 197,313 Transfers - Interfund 31,231 31,231 135,072 (103,841) Economic Development 3,019,854 3,038,854 2,850,772 188,082 Personal Service 7,239,165 7,239,165 7,061,739 177,426 Materials and Supplies 725,865 723,330 697,999 25,331 Maintenance and Repairs 830,892 826,940 712,950 113,990 Insurance 172,253 172,253 172,253 - Miscellaneous - - 197 (197) Operations, Services 2,226,821 2,200,908 2,057,343 143,565 Transfers - Interfund 593,708 626,108 643,987 (17,879) Fixed Assets - - 28,740 (28,740) Parks & Recreation $ 11,788,704 $ 11,788,704 $ 11,375,208 $ 413,496 (continued) 145 CITY OF DENTON, TEXAS Exhibit XXXIV SCHEDULE OF EXPENDITURES - BUDGET AND ACTUAL GENERAL FUND FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2015 Personal Service 259,830 259,830 244,746 Variance with Materials and Supplies 9,132 9,132 Actual on a Final Budget - Maintenance and Repairs Budgeted Amounts Budgetary Positive 735 Original Final Basis (Negative) EXPENDITURES: Miscellaneous 400 400 1,156 Personal Service $ 1,414,034 $ 1,414,034 $ 1,414,231 $ (197) Materials and Supplies 47,275 47,275 34,045 13,230 Maintenance and Repairs 886,946 811,446 821,674 (10,228) Insurance 17,772 17,772 17,772 - Miscellaneous 1,503 1,503 857 646 Operations, Services 1,208,982 1,162,205 1,205,781 (43,576) Transfers - Interfund 127,385 258,222 289,795 (31,573) Fixed Assets 39,060 - - - Facilities Management 3,742,957 3,712,457 3,784,155 (71,698) Personal Service 3,500,009 3,500,009 3,392,810 107,199 Materials and Supplies 150,319 154,900 150,180 4,720 Maintenance and Repairs 115,888 72,210 64,594 7,616 Insurance 76,510 76,510 76,510 - Operations, Services 447,420 435,913 462,449 (26,536) Transfers - Interfund 919,990 1,016,786 1,016,793 (7) Fixed Assets 455,000 457,201 457,201 - Library 5,665,136 5,713,529 5,620,537 92,992 Personal Service 259,830 259,830 244,746 15,084 Materials and Supplies 9,132 9,132 3,371 5,761 Maintenance and Repairs 4,300 4,300 3,565 735 Insurance 1,202 1,202 1,202 - Miscellaneous 400 400 1,156 (756) Operations, Services 166,402 166,402 145,897 20,505 Transfers - Interfund 7,046 7,046 7,046 - Transportation Operations 448,312 448,312 406,983 41,329 Personal Service 954,261 954,261 949,274 4,987 Materials and Supplies 18,350 18,350 15,105 3,245 Maintenance and Repairs 781,248 949,254 914,678 34,576 Insurance 23,141 23,141 23,141 - Miscellaneous 2,400 2,400 2,067 333 Operations, Services 167,416 167,522 162,819 4,703 Transfers - Interfund 91,289 291,289 331,289 (40,000) Fixed Assets 200,000 - - - Traffic Operations 2,238,105 2,406,217 2,398,373 7,844 Operations, Services 735,000 735,000 743,809 (8,809) Street Lighting $ 735,000 $ 735,000 $ 743,809 $ (8,809) (continued) 146 CITY OF DENTON, TEXAS SCHEDULE OF EXPENDITURES - BUDGET AND ACTUAL GENERAL FUND FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2015 Exhibit XXXIV Personal Service 720,954 720,954 806,606 Variance with Materials and Supplies 49,513 49,513 Actual on a Final Budget - Maintenance and Repairs Budgeted Amounts Budgetary Positive (6,676) Original Final Basis (Negative) EXPENDITURES: Operations, Services 282,593 282,593 393,482 Personal Service $ 23,546,210 $ 23,546,210 $ 23,233,215 $ 312,995 Materials and Supplies 235,726 267,966 289,587 (21,621) Maintenance and Repairs 199,480 199,480 189,948 9,532 Insurance 311,928 311,928 311,928 - Miscellaneous 94,365 94,365 91,849 2,516 Operations, Services 1,126,073 1,126,073 972,622 153,451 Transfers - Interfund 1,483,202 1,543,152 1,542,797 355 Fixed Assets 59,950 10,000 6,936 3,064 Police 27,056,934 27,099,174 26,638,882 460,292 Personal Service 720,954 720,954 806,606 (85,652) Materials and Supplies 49,513 49,513 107,468 (57,955) Maintenance and Repairs 13,716 13,716 20,392 (6,676) Insurance 12,681 12,681 12,681 - Operations, Services 282,593 282,593 393,482 (110,889) Transfers - Interfund 55,508 55,508 55,508 - Animal Services 1,134,965 1,134,965 1,396,137 (261,172) Personal Service 21,021,665 21,021,665 20,349,050 672,615 Materials and Supplies 433,401 425,164 456,321 (31,157) Maintenance and Repairs 258,804 236,134 236,818 (684) Insurance 233,931 233,931 233,931 - Miscellaneous 54,600 54,600 43,335 11,265 Operations, Services 1,288,933 1,288,540 1,199,286 89,254 Transfers - Interfund 724,490 1,207,228 1,207,228 - Fixed Assets 80,000 80,000 80,000 - Fire 24,095,824 24,547,262 23,805,969 741,293 Personal Service 203,642 203,642 209,786 (6,144) Materials and Supplies 1,810 1,810 1,903 (93) Insurance 3,360 3,360 3,360 - Miscellaneous 220,000 220,000 204,549 15,451 Operations, Services 5,696 5,696 6,466 (770) Transfers - Interfund 24,262 24,262 24,262 - Agency Contributions 458,770 458,770 450,326 8,444 Personal Service (1,000,000) (1,252,612) 40,708 (1,293,320) Materials and Supplies 20,000 20,000 20,000 - Maintenance and Repairs 3,200 9,150 9,150 - Miscellaneous 175,000 176,975 181,231 (4,256) Operations, Services 1,008,949 1,041,274 984,245 57,029 Transfers - Interfund 2,054,115 2,283,927 2,202,757 81,170 Miscellaneous/Finance 2,261,264 2,278,714 3,438,091 (1,159,377) Personal Service 73,914,233 73,644,321 72,845,906 798,415 Materials and Supplies 2,417,579 2,425,930 2,438,243 (12,313) Maintenance and Repairs 3,145,839 3,188,548 3,024,933 163,615 Insurance 1,059,522 1,059,522 1,059,523 (1) Miscellaneous 913,604 891,629 921,080 (29,451) Operations, Services 13,048,955 12,907,241 12,452,213 455,028 Transfers - Interfund 7,449,364 8,929,990 9,051,765 (121,775) Fixed Assets 897,544 564,975 572,877 (7,902) TOTAL GENERAL FUND $ 102,846,640 $ 103,612,156 $ 102,366,540 $ 1,245,616 147 148 Published 02/2016 ADA/EOE /ADEA TDD: (800) 735 -2989 www.cityofdenton.com CITY OF DENTON, TEXAS SINGLE AUDIT REPORTS YEAR ENDED SEPTEMBER 30, 2015 CONTENTS Page Independent Auditor's Report on Internal Control over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards Independent Auditor's Report on Compliance for Each Major Program; Report on Internal Control over Compliance; and Report on the Schedule of Expenditures of Federal and State Awards Required by OMB Circular A -133 3 Schedule of Findings and Questioned Costs 6 Schedule of Expenditures of Federal and State Awards 8 Notes to Schedule of Expenditures of Federal and State Awards 10 ME= INDEPENDENT AUDITOR'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING AND ON COMPLIANCE AND OTHER MATTERS BASED ON AN AUDIT OF FINANCIAL STATEMENTS PERFORMED IN ACCORDANCE WITH GOVERNMENT AUDITING STANDARDS The Honorable Mayor and City Council City of Denton, Texas We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, the business -type activities, each major fund, and the aggregate remaining fund information of the City of Denton (the City), as of and for the year ended September 30, 2015, and the related notes to the financial statements, which collectively comprise the City's basic financial statements, and have issued our report thereon dated February 24, 2016, which included an emphasis of matter paragraph on the implementation of a new accounting standard. Internal Control over Financial Reporting In planning and performing our audit of the financial statements, we considered the City's internal control over financial reporting (internal control) to determine the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the City's internal control. Accordingly, we do not express an opinion on the effectiveness of the City's internal control. A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control, such that there is a reasonable possibility that a material misstatement of the entity's financial statements will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance. Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or, significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified. AN INDEPENDENT MEMBER OF Wll:iiAVlfiiJR AIC ID 'r11DW11:..JI I..., I. -I. -P, 12221 MERIT DRIVE, SUITE 1400, DALLAS, TX 75251 BAKER TILLY INTERNATIONAL CERTIFIED PUBLIC ACCOUNTANTS AND ADVISORS P: 972.4901970 F: 972.702.8321 City of Denton, Texas Page 2 Compliance and Other Matters As part of obtaining reasonable assurance about whether the City's financial statements are free from material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the determination of financial statement amounts. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards. Purpose of this Report The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the entity's internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity's internal control and compliance. Accordingly, this communication is not suitable for any other purpose. r WEAVER AND TIDWELL, L.L.P. Dallas, Texas February 24, 2016 weaver INDEPENDENT AUDITOR'S REPORT ON COMPLIANCE FOR EACH MAJOR PROGRAM; REPORT ON INTERNAL CONTROL OVER COMPLIANCE; AND REPORT ON THE SCHEDULE OF EXPENDITURES OF FEDERAL AND STATE AWARDS REQUIRED BY OMB CIRCULAR A -133 The Honorable Mayor and City Council City of Denton, Texas Report on Compliance for Each Major Federal Program We have audited the City of Denton (the City)'s compliance with the types of compliance requirements described in the U.S. Office of Management and Budget (OMB) Compliance Supplement that could have a direct and material effect on each of the City's major federal programs for the year ended September 30, 2015. The City's major federal programs are identified in the summary of auditor's results section of the accompanying schedule of findings and questioned costs. Management's Responsibility Management is responsible for compliance with the requirements of laws, regulations, contracts, and grants applicable to its federal programs. Auditor's Responsibility Our responsibility is to express an opinion on compliance for each of the City's major federal programs based on our audit of the types of compliance requirements referred to above. We conducted our audit of compliance in accordance with auditing standards generally accepted in the United States of America; the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States; and OMB Circular A -133, Audits of States, Local Governments, and Non - Profit Organizations. Those standards and OMB Circular A -133 require that we plan and perform the audit to obtain reasonable assurance about whether noncompliance with the types of compliance requirements referred to above that could have a direct and material effect on a major federal program occurred. An audit includes examining, on a test basis, evidence about the City's compliance with those requirements and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion on compliance for each major federal program. However, our audit does not provide a legal determination of the City's compliance. Opinion on Each Major Federal Program In our opinion, the City complied, in all material respects, with the types of compliance requirements referred to above that could have a direct and material effect on each of its major federal programs for the year ended September 30, 2015. AN INDEPENDENT MEMBER OF Wll:.iAVlfiiJR AIC ID 'r11DW11:..JI I..., I. -I. -P, BAKER TILLY INTERNATIONAL CERTIFIED PUBLIC ACCOUNTANTS AND ADVISORS 3 12221 MERIT DRIVE, SUITE 1400, DALLAS, TX 75251 P: 972.4901970 'F:972.702.8321 City of Denton, Texas Page 2 Report on Internal Control Over Compliance Management of the City is responsible for establishing and maintaining effective internal control over compliance with the types of compliance requirements referred to above. In planning and performing our audit of compliance, we considered the City's internal control over compliance with the types of requirements that could have a direct and material effect on each major federal program to determine the auditing procedures that are appropriate in the circumstances for the purpose of expressing an opinion on compliance for each major federal program and to test and report on internal control over compliance in accordance with OMB Circular A -133, but not for the purpose of expressing an opinion on the effectiveness of internal control over compliance. Accordingly, we do not express an opinion on the effectiveness of the City's internal control over compliance. A deficiency in internal control over compliance exists when the design or operation of a control over compliance does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, noncompliance with a type of compliance requirement of a federal program on a timely basis. A material weakness in internal control over compliance is a deficiency, or combination of deficiencies, in internal control over compliance, such that there is a reasonable possibility that material noncompliance with a type of compliance requirement of a federal program will not be prevented, or detected and corrected, on a timely basis. A significant deficiency in internal control over compliance is a deficiency, or a combination of deficiencies, in internal control over compliance with a type of compliance requirement of a federal program that is less severe than a material weakness in internal control over compliance, yet important enough to merit attention by those charged with governance. Our consideration of internal control over compliance was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control over compliance that might be material weaknesses or significant deficiencies. We did not identify any deficiencies in internal control over compliance that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified. Purpose of this Report The purpose of this report on internal control over compliance is solely to describe the scope of our testing of internal control over compliance and the results of that testing based on the requirements of OMB Circular A -133. Accordingly, this report is not suitable for any other purpose. City of Denton, Texas Page 3 Report on Schedule of Expenditures of Federal and State Awards Required by OMB Circular A -133 We have audited the financial statements of the governmental activities, the business -type activities, each major fund, and the aggregate remaining fund information of the City, as of and for the year ended September 30, 2015, and the related notes to the financial statements, which collectively comprise the City's basic financial statements. We issued our report thereon dated February 24, 2016, which contained unmodified opinions on those financial statements, which included an emphasis of matter paragraph on the implementation of a new accounting standard. Our audit was conducted for the purpose of forming opinions on the financial statements that collectively comprise the basic financial statements. The accompanying schedule of expenditures of federal and state awards is presented for purposes of additional analysis as required by OMB Circular A -133 and is not a required part of the basic financial statements. Such information is the responsibility of management and was derived from and relates directly to the underlying accounting and other records used to prepare the basic financial statements. The information has been subjected to the auditing procedures applied in the audit of the financial statements and certain additional procedures, including comparing and reconciling such information directly to the underlying accounting and other records used to prepare the basic financial statements or to the basic financial statements themselves, and other additional procedures in accordance with auditing standards generally accepted in the United States of America. In our opinion, the schedule of expenditures of federal and state awards is fairly stated in all material respects in relation to the basic financial statements as a whole. r WEAVER AND TIDWELL, L.L.P. Dallas, Texas February 24, 2016 5 CITY OF DENTON, TEXAS SCHEDULE OF FINDINGS AND QUESTIONED COSTS FOR THE YEAR ENDED SEPTEMBER 30, 2015 I. Summary of the Auditor's Results: Financial Statements a. An unmodified opinion was issued on the financial statements. b. Internal control over financial reporting: • Material weakness(es) identified? • Significant deficiency(ies) identified that are not considered a material weakness? c. Noncompliance material to financial statements noted Major Programs d. Internal control over major programs: • Material weakness(es) identified? • Significant deficiency(ies) identified that are not considered a material weakness? Yes X No Yes X None reported Yes X No Yes X No Yes X None reported e. An unmodified opinion was issued on compliance for major programs. f. Any audit findings disclosed that were required to be reported under Section 510(a) or OMB Circular A -133. Yes X No g. Identification of major programs 14.231 Emergency Solutions Grant 14.239 Home Investment Partnerships Program h. The dollar threshold used to distinguish between type A and type B programs. $300,000 i. Auditee qualified as a low -risk auditee. X Yes No C. CITY OF DENTON, TEXAS SCHEDULE OF FINDINGS AND QUESTIONED COSTS FOR THE YEAR ENDED SEPTEMBER 30, 2015 II. Findings Relating to the Financial Statements Which Are Required To Be Reported in Accordance with Generally Accepted Government Auditing Standards ►NOTIV III. Findings and Questioned Costs for Federal Awards 01 ml- IV. Summary of Prior year Findings None 7 CITY OF DENTON, TEXAS SCHEDULE OF EXPENDITURES OF FEDERAL AND STATE AWARDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 FEDERAL GRANTOR/ 99100002075 FEDERAL 562,289 560,199 PASSED PASS- THROUGH GRANTOR/ GRANT CFDA Total passed through Texas Department of Housing THROUGH TO PROGRAM TITLE I.D. NUMBER NUMBER EXPENDITURES SUBRECIPIENTS FEDERAL AWARDS 614,035 611,945 Total U.S. Department of Housing and U. S. DEPARTMENT OF HOUSING AND Urban Development URBAN DEVELOPMENT 1,928,558 898,070 U. S. DEPARTMENT OF HOMELAND SECURITY Community Development Block Grant* B- 10 -MC -48 -0036 14.218 $ 8,890 $ Community Development Block Grant* B- 11 -MC -48 -0036 14.218 38,875 Community Development Block Grant* B- 12 -MC -48 -0036 14.218 13,283 - Community Development Block Grant* B- 13 -MC -48 -0036 14.218 200,670 7,755 Community Development Block Grant* B- 14 -MC -48 -0036 14.218 641,012 243,270 Community Development Block Grant* B- 15 -MC -48 -0036 14.218 40,700 - Home Investment Partnerships Program M- 10 -MC -48 -0223 14.239 20,850 - Home Investment Partnerships Program M- 12 -MC -48 -0223 14.239 34,227 14,444 Home Investment Partnerships Program M- 13 -MC -48 -0223 14.239 209,123 20,656 Home Investment Partnerships Program M- 14 -MC -48 -0223 14.239 98,489 - Home Investment Partnerships Program M- 15 -MC -48 -0223 14.239 8,404 - Total Direct Funding U.S. Department of Housing Total U.S. Department of Justice 244,075 and Urban Development * CDBG Entitlement Grants Cluster 1,314,523 286,125 Passed Through Texas Department of Housing and Community Affairs 2010 Emergency Shelter Grant 99100002075 14.231 562,289 560,199 2014 -15 Emergency Solution Grant 42140002053 14.231 51,746 51,746 Total passed through Texas Department of Housing and Community Affairs 614,035 611,945 Total U.S. Department of Housing and Urban Development 1,928,558 898,070 U. S. DEPARTMENT OF HOMELAND SECURITY Passed through State Department of Public Safety Governor's Division of Emergency Management Emergency Management Performance Grant 15TX -EMPG -0122 97.042 46,825 2013 SHSP -LETPA State Homeland Security Program EMW- 2013 -SS -00045 97.067 9,468 2013 DFWA UASI State Homeland Security Program EMW- 2013 -SS -00045 97.067 41,690 2013 UASI -LETPA State Homeland Security Program EMW- 2013 -SS -00045 97.067 49,995 2014 SHSP -LETPA State Homeland Security Program EMW- 2014 -SS -00029 97.067 35,800 2014 DFWA -UASI State Homeland Security Program EMW- 2014 -SS -00029 97.067 13,121 Total U.S. Department of Homeland Security 196,899 U. S. DEPARTMENT OF JUSTICE BJA 2010 Congressional Grant 2010 -DD -BX -0002 16.753 217,475 2013 Byrne Justice Assistance Grant 2013 -DJ -BX -0875 16.804 2,243 2014 Byrne Justice Assistance Grant 2014- DJ- TX -H2689 16.804 24,357 Total U.S. Department of Justice 244,075 * CDBG Entitlement Grants Cluster (Continued) N. CITY OF DENTON, TEXAS SCHEDULE OF EXPENDITURES OF FEDERAL AND STATE AWARDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 FEDERAL GRANTOR/ FEDERAL PASSED PASS- THROUGH GRANTOR/ GRANT CFDA THROUGH TO PROGRAM TITLE I.D. NUMBER NUMBER EXPENDITURES SUBRECIPIENTS U. S. DEPARTMENT of AGRICULTURE Total Texas Department of Transportation Passed through Texas Department TEXAS DEPARTMENT OF HOUSING AND COMMUNITY of Health and Human Services AFFAIRS SINGLE FAMILY Summer Food Services Grant 061 -1002 10.559 134,052 2014 Farmers Market Promotion Program 14- FMPPX -TX -0160 10.160 14,453 Total U.S. Department of Agriculture and Community Affairs 148,505 U. S. DEPARTMENT OF TRANSPORTATION TEXAS DEPARTMENT OF STATE HEALTH SERVICES Passed Through State Department Tobacco Prevention Grant 120 N/A of Transportation Total Texas Department of State Health Services STEP - Comprehensive 2014- DentonPD -S -IYG -0023 20.600 87,404 Total U.S. Department of Transportation TOTAL FEDERAL AND STATE 87,404 U. S. DEPARTMENT OF INTERIOR FINANCIAL ASSISTANCE EXPENDED National Park Service passed through the Texas Historical Commission TX -14 -027 15.904 37,755 Total U.S. Department of Interior 37,755 INSTITUTE OF MUSEUM AND LIBRARY SERVICES Passed through Texas State Library and Archives Commission (TSLAC) Interlibrary Loan Program (ILL) LS 00 -14- 0044 -14 45.310 20,038 Total Institute of Museum and Library Services 20,038 - TOTAL EXPENDITURES OF FEDERAL AWARDS 2,663,234 898,070 STATE AWARDS TEXAS DEPARTMENT OF TRANSPORTATION Airport Maintenance Grant M1518DNTO N/A 50,000 2014 Auto Burglary Prevention and Theft Grant 2015 -T01- Denton -00028 N/A 213,850 Total Texas Department of Transportation 263,850 TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS SINGLE FAMILY Amy Young Barrier Removal Program 1002007 N/A 42,004 Total Texas Department of Housing 42,004 and Community Affairs TEXAS DEPARTMENT OF STATE HEALTH SERVICES Tobacco Prevention Grant 120 N/A 12,300 Total Texas Department of State Health Services 12,300 - TOTAL EXPENDITURES OF STATE AWARDS 318,154 - TOTAL FEDERAL AND STATE FINANCIAL ASSISTANCE EXPENDED $ 2,981,388 $ 898,070 (Concluded) 4 CITY OF DENTON, TEXAS NOTES TO SCHEDULE OF EXPENDITURES OF FEDERAL AND STATE AWARDS FOR THE YEAR ENDED SEPTEMBER 30, 2015 1. GENERAL The accompanying schedule of expenditures of federal and state awards presents the activity of all applicable federal and state awards of the City of Denton, Texas (the City). The City's reporting entity is defined in Note 1 to the City's basic financial statements. Federal and state awards received directly from federal and state agencies as well as federal and state awards passed through other government agencies are included in the respective schedule. 2. BASIS OF ACCOUNTING The accompanying schedule of expenditures of federal and state awards is presented using modified accrual basis of accounting, which is described in Note 1 to the City's basic financial statements. 3. RELATIONSHIP TO FEDERAL FINANCIAL REPORTS Grant expenditures reports as of September 30, 2015, which have been submitted to grantor agencies will, in some cases, differ slightly from amounts disclosed herein. The reports prepared for grantor agencies are typically prepared at a later date and often reflect refined estimates of year -end accruals. The reports will agree at termination of the grant as the discrepancies noted are timing differences. 10 w e e March 1, 2016 To the Audit Committee City of Denton, Texas We have audited the financial statements of the governmental activities, the business -type activities, each major fund, and the aggregate remaining fund information of the City of Denton, Texas (the City) as of and for the year ended September 30, 2015, and have issued our report thereon dated February 24, 2016. Professional standards require that we provide you with information about our responsibilities under generally accepted auditing standards, Governinent Auditing Standards and OMB Circular A -133. Professional standards also require that we communicate to you the following information related to our audit. Our Responsibility in Relation to the Financial Statement Audit As communicated in our engagement letter dated July 13, 2015, our responsibility, as described by professional standards, is to form and express an opinion about whether the financial statements that have been prepared by management with your oversight are presented fairly, in all material respects, in conformity with accounting principles generally accepted in the United States of America. Our audit of the financial statements does not relieve you or management of your respective responsibilities. Our responsibility, as prescribed by professional standards, is to plan and perform our audit to obtain reasonable, rather than absolute, assurance about whether the financial statements are free of material misstatement. An audit of financial statements includes consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control over financial reporting. Accordingly, as part of our audit, we considered the internal control of the City solely for the purpose of determining our audit procedures and not to provide any assurance concerning such internal control. We are also responsible for communicating significant matters related to the audit that are, in our professional judgment, relevant to your responsibilities in overseeing the financial reporting process. However, we are not required to design procedures for the purpose of identifying other matters to communicate to you. Planned Scope and Timing of the Audit We conducted our audit consistent with the planned scope and timing we previously communicated to you. AN INDEPENDENT MEMBER OF WEAVER AI' D TVV: WEV...V..., V....V....Pp 12221 MERIT DRIVE, SUITE 1400, DALLAS, TX 75251 BAKER TILLY INTERNATIONAL CERTIFIED PUBLIC ACCOUNTANTS AND ADVISORS P: 972.4901970 F: 972702.8321 City of Denton, Texas March 1, 2016 Page 2 Compliance with All Ethics Requirements Regarding Independence The engagement team, others in our firm, as appropriate, our firm, and our network firms have complied with all relevant ethical requirements regarding independence. Qualitative Aspects of the Entity's Significant Accounting Practices Significant Accounting Policies Management has the responsibility to select and use appropriate accounting policies. A summary of the significant accounting policies adopted by the City is included in Note I to the financial statements. As described in Note I.F. to the financial statements, during the year, the City changed its method of accounting for pension liability recognition by adopting Governmental Accounting Standards Board (GASB) Statements No. 68, "Accounting and Financial reporting for Pensions — an Amendment of GASB Statement No. 27" and No. 71, "Pension Transition for Contributions Made Subsequent to the Measurement Date an amendment of GASB Statement No. 68 ". Accordingly, the cumulative effect of the accounting change as of the beginning of the year has been reported in the statement of activities and the statement of revenues, expenses and changes in net position. The City also recorded a prior period adjustment, as described in Note LF., for the accrual of compensated absences. Accordingly, the cumulative effect of the prior period adjustment as of the beginning of the year has been reported in the statement of activities. No matters have come to our attention that would require us, under professional standards, to inform you about (1) the methods used to account for significant unusual transactions and (2) the effect of significant accounting policies in controversial or emerging areas for which there is a lack of authoritative guidance or consensus. Significant Accounting Estimates Accounting estimates are an integral part of the financial statements prepared by management and are based on management's current judgments. Those judgments are normally based on knowledge and experience about past and current events and assumptions about future events. Certain accounting estimates are particularly sensitive because of their significance to the financial statements and because of the possibility that future events affecting them may differ markedly from management's current judgments. City of Denton, Texas March 1, 2016 Page 3 The most sensitive accounting estimates affecting the financial statements are management's estimate of the net pension liability, other post - employment benefits (OPEB) liability, and the incurred but not reported (IBNR) liabilities for self - insured workers compensation claims, health insurance claims, and general liability claims. The estimates for the net pension, OPEB, and IBNR liabilities are based on actuarial calculations performed by independent third parties. We evaluated the key factors and assumptions used to develop these estimates in determining that they are reasonable in relation to the financial statements taken as a whole and in relation to the applicable opinion units. Financial Statement Disclosures The disclosures in the financial statements are neutral, consistent, and clear. Significant Difficulties Encountered during the Audit We encountered no difficulties in dealing with management relating to the performance of the audit. Uncorrected and Corrected Misstatements For purposes of this communication, professional standards require us to accumulate all known and likely misstatements identified during the audit, other than those that we believe are trivial, and communicate them to the appropriate level of management. Further, professional standards require us to also communicate the effect of uncorrected misstatements related to prior periods on the relevant classes of transactions, account balances or disclosures, and the financial statements as a whole and each applicable opinion unit. There were no significant uncorrected financial statement misstatements, both individually and in the aggregate, to the financial statements taken as a whole and each applicable opinion unit In addition, professional standards require us to communicate to you all material, corrected misstatements that were brought to the attention of management as a result of our audit procedures. We did not identify any material misstatements as a result of our audit procedures. City of Denton, Texas March 1, 2016 Page 4 Disagreements with Management For purposes of this letter, professional standards define a disagreement with management as a matter, whether or not resolved to our satisfaction, concerning a financial accounting, reporting, or auditing matter, which could be significant to the City of Denton's financial statements or the auditor's report. No such disagreements arose during the course of the audit. Representations Requested from Management We have requested certain written representations from management in our letter dated February 24, 2016. Management's Consultations with Other Accountants In some cases, management may decide to consult with other accountants about auditing and accounting matters. Management informed us that, and to our knowledge, there were no consultations with other accountants regarding auditing and accounting matters. Other Significant Matters, Findings, or Issues In the normal course of our professional association with the City of Denton, we generally discuss a variety of matters, including the application of accounting principles and auditing standards, operating and regulatory conditions affecting the entity, and operational plans and strategies that may affect the risks of material misstatement. None of the matters discussed resulted in a condition to our retention as the City's auditors. Other Information in Documents Containing Audited Financial Statements Pursuant to professional standards, our responsibility as auditors for other information in documents containing the City's audited financial statements does not extend beyond the financial information identified in the audit report, and we are not required to perform any procedures to corroborate such other information. However, in accordance with such standards: We have applied certain limited procedures to the required supplementary information in accordance with auditing standards generally accepted in the United States of America, which consisted of inquiries of management about the methods of preparing the information and comparing the information for consistency with management's responses to our inquiries, the City of Denton, Texas March 1, 2016 Page 5 basic financial statements, and other knowledge we obtained during our audit of the basic financial statements. We have applied certain audit procedures to the combining individual and nonmajor fund financial statements in accordance with auditing standards generally accepted in the United States of America which consisted of auditing procedures applied in the audit of the basic financial statements and certain additional procedures, including comparing and reconciling such information directly to the underlying accounting and other records used to prepare the basic financial statements or to the basic financial statements themselves, and other additional procedures. Our responsibility also includes communicating to you any information which we believe is a material misstatement of fact. Nothing came to our attention that caused us to believe that such information, or its manner of presentation, is materially inconsistent with the information, or manner of its presentation, appearing in the financial statements. This report is intended solely for the information and use of the Audit Committee of the City of Denton, and management and is not intended to be and should not be used by anyone other than these specified parties. Yours truly, WEAVER AND TIDWELL, L.L.P. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -317, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM/ ACM: John Cabrales Date: March 1, 2016 SUBJECT Receive a report, hold a discussion, and give staff direction regarding approval of a purchase order through the National Joint Powers Alliance (NJPA) Contract # 022113 - CXT for the purchase of prefabricated concrete restroom buildings at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park. BACKGROUND During the 2005 Bond Election, the citizens of Denton approved the replacement of the restrooms at North Lakes Park Fields 5 and 6, the restroom at Mack Park's Roberts Field, and the restroom concession at Mack Park, structures which were built in 1979. Parks and Recreation Department staff researched various construction methods, obtained construction pricing from several contractors, and determined that prefabricated concrete restrooms were significantly less expensive than standard restrooms (Exhibit 1). Prefabricated restrooms are widely used throughout the Parks and Recreation industry and have become the standard in many state and municipal Parks Departments. The purchase price includes the design, engineering, and installation of three (3) of these restroom facilities. The pricing has been competitively bid through a contract facilitated by the National Joint Powers Alliance. In accordance with the procedures of Texas Local Government Code271.102 (Cooperative Purchasing Participation), the City of Denton, Texas, is authorized to participate in Cooperative Agreements. On September 15, 2015, a Consent Agenda Item was reviewed by the City Council regarding the consideration of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park. Following consideration, the City Council gave direction to staff to review alternate means and methods of construction and to determine if any local architectural, engineering, and construction firms in the Denton area could supply the Parks and Recreation Department with comparable buildings for a lesser price. Staff solicited estimates from 10 construction firms, the results of which are summarized below: 1. BLC Architecture met with staff and concluded that site -built concessions and restrooms could be built for $923,223. Facilities constructed with the design would not be able to be repurposed and moved City of Denton Page 1 of 3 Printed on 2/26/2016 File #: ID 16 -317, Version: 1 at a later date, and will cost $168,148 more than the CXT option presented. 2. Lemco presented several options including site built units for $1,014,000; alternate stucco exterior concrete modular buildings for $724,000; and the specified CXT units for $857,993. The Walcon modular series of buildings were $33,000 cheaper than text model but the stucco exterior construction is less resilient than the 4- inchpigmented concrete used in the CXT Models specified. Additionally, the CXT units were a total of $100,917 more expensive if purchased through Lemco, rather than with CXT. No design fees are included in the Lemco figures. 3. Links Construction provided an estimated cost of $665,488.25 for site built buildings. The addition of similar permits and bonding that has already been supplied for the CXT option increases this cost to $677,377.75, and allows for a total savings of $79,697.25 for three buildings. This option would provide the Parks and Recreation Department three restroom and concession buildings made of CMU block. Repurposing the buildings at a later date would not be an option with this purchase. All design fees are included in this Links bid. 4. Caliber Construction could build these three buildings for an amount not to exceed the $757,000 quote from CXT with the caveat that the results from borings and geotechnical reports did not require significant amendments to the foundations of any of the buildings. There is no gain with this option as there is no anticipated cost savings and the building could not be repurposed or moved to an alternate location at some point in the future. No design fees are included in the Caliber figures. 5. Schmoldt Construction - No response. 6. Crossland Construction - No response. 7. BR Construction - No response. 8. TB Builders - No response. 9. TCMC INC - No response. 10. Tyson Construction - No response. OPTIONS 1. Approve a purchase order through the National Joint Powers Alliance (NJPA) Contract 4 022113 - CXT for the purchase of prefabricated concrete restroom buildings at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park, and providing an effective date. (File 5880- awarded to CXT, Inc. in the not -to- exceed amount of $757,073) 2. Provide additional direction for an alternate means of purchase and construction for three restrooms and concessions. 3. Resolve to take no action at this time. RECOMMENDATION Following careful consideration of competing estimates and associated alternates, the Parks and Recreation Department is convinced that the best value purchase for construction of the three concrete restrooms remains CXT, courtesy of their quality product, competitive quote, and commitment to produce the three concrete restrooms at their Hillsboro, Texas, plant, where they employ local tradesmen for construction and install. City of Denton Page 2 of 3 Printed on 2/26/2016 File #: ID 16 -317, Version: 1 ESTIMATED SCHEDULE OF PROJECT The manufacture, delivery and installation of these buildings is estimated to be completed by May 30, 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This item was submitted as Item ID15 -598 of the Consent Agenda on the September 15, 2015, City Council Meeting. FISCAL INFORMATION This project will be funded from the Parks Capital Project Fund using the following accounts numbers: 400079470.1350.40100 - $467,218 400080470.1350.40100 - $290,855 Purchase Order 171451 will be revised to add the individual buildings for each park area. BID INFORMATION The pricing has been competitively bid through a contract facilitated by the National Joint Powers Alliance. In accordance with the procedures of Texas Local Government Code 271.102 (Cooperative Purchasing Participation). 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: 4.3 Provide quality, diverse, and accessible neighborhood services for the community EXHIBITS 1) Exhibit 1 - Staff Memo 2) Exhibit 2 - NJPA CXT Contract Award 3) Exhibit 3 - 2016 -011 ISR CXT Restroom and Concession Purchase Respectfully submitted: Emerson Vorel, Director of Parks and Recreation Prepared by: Jim Mays Superintendent of Planning and Construction City of Denton Page 3 of 3 Printed on 2/26/2016 EXHIBIT 1 Parks it RKrEa' "ICN1 C Q , Parks and Recreation Departinent 601 E. Hickory St., Suite B, Denton, Texas 76205 Date: July 8, 2015 TO: Elton Brock FROM: Jim Mays SUBJECT: CXT Restrooms NJPA Contract 4 022113 -CXT Prefabricated buildings were selected for the restroom replacements instead of on -site buildings for the three (3) park restrooms (Roberts, Mack, and North Lakes) that were funded in the 2005 CIP. This is due to the fact that the amount of available funds was insufficient to cover the cost of the three projects that were presented in the 2005 Bond Election. Traditional design and construction of site built facilities would cost in excess of $560,000 each. With the additional requirements to get the Mack Park concession within Health Code compliance, that figure would have been significantly higher. Currently, there is only $842,683 to complete all the restroom replacement projects. After consulting with the City's Materials Management Division, I contacted Scott Richter, Owner of Caliber Construction — Denton, Texas to receive local informal quotes based on the City of Denton's Unit price for general construction. Caliber Construction has performed many successful construction projects for the City of Denton. Scott stated that "there was no way he would be able to provide a quote that would fall within the proposed budget as it would come to more than $800,00 for each structure ". The total would have easily exceeded $2.4 million dollars. He went on to suggest that the only way we would be able to move this project forward with our limited budget was to use a prefabricated building manufacturer. After conducting extensive research, there are only three vendors in the United States the produce these types of prefabricated structures. I visited the plants of two of the companies, one of which produces an inferior product, while CXT buildings are much more structurally sound and a lot more visually appealing. The third company is located in Reno, Nevada which was not feasible to visit. Shipping costs from this location would be extremely high as each building consists of five or more sections that weigh in excess of 80,000 pounds. CXT is located in Hillsboro, Texas which allows for a lower shipping cost, feasible access to visit the production facility and a much quicker response to any warranty issues should they arise. I then met with members of the Park Department, and our stakeholders, to provide all an opportunity to have input on the design of the project. After a period of vetting and review along with an evaluation of similar builders, then team settled on CXT as the "best valued option" for the City of Denton needs. ADA/EOE /ADEA www.cityofdenton.com (TDD 800 - 735 -2989) EXHIBIT 1 Page 2 of 2 The Engineered drawings were purchased so that a review could be made by our Building Inspections Division, and each of the three structures has been approved and qualify for a building permit. I am recommending that the City purchase three (3) pre- fabricated buildings constructed and set in place by CXT at the designated Park locations, in order to remain within the allotted funding. ADA/EOE /ADEA www.cityofdenton.com (TDD 800 - 735 -2989) National Joint Powers A}liomoe : CXTIoc. Page } of EXHIBIT 2 Home -National Cooperative Contract Solutions Contracts `Gene=°Parksmnecr=oon,oXTInc. ",_W kn 06� ������, ����==RD C?W C""tr,ct4.022113-Cxr Category: Parks &Recreation Description: Athletic & Recreational Surfaces, Playgrounds and Equipment Concrete Buildings Maturity Date: 04p3/2u1r oncunc��nunu/nn,mannmcm�s��vo=`xm°� and m"o,mo"uunu/"n,amnamemmumn/eueuom^ o�~�° textures and colors. The roof and walls are fabricated with high strength precast concrete to meet all local Contract Documentation building codes and textured to match local architectural details. All CXT buildings are designed to meet A.D,A. and to withstand snow, wind and group I seismic design category E earthquakes. All concrete construction also pn"/"o makes the buildings easy to maintain and withstand the rigors of vandalism. The buildings are prefabricated and uex�eammp/e�onan*av'm-us=muumnon/ummnoanue/ecmo/wxe�ann//ome.w/,xtxuu,anu,� Marketing Materials satisfied customers nationwide, cmu the leader m prefabricated concrete re,tmum,. NJPA Contact Information HOW TO PURCHASE '^ ---------[�\ nm��+�*�»om�`�~' Vendor Contact Info Garyamoerwmiono/Sa/es Manager Direct Phone: moo>aoa'srsa u3450 ceo:(254)717-0912 aww.cxtinc,com Sales Direct Phone: ��6-s66 ANNUAL RENEWAL OF AGREEMENT Made by and Between CT Inc. (Vendor) 3808 North Sullivan, Building 47 Spokane Valley, WA 99216 F =1 202 121b Street NE Staples, MN 5647.9 Phone.- (218) 894-1930 LYhereas: "Vendor" and "NIPA" have entered into an "Acceptance and Award #022113-CXP'for the procurement of Playground and Recreation Related Equipment, Accessories and Supplies, and having a maturity date of April 23, 2017, and which are subject to annual renewals at the option of both parties, Now therefore: "Vendor" and "NJPA" hereby and"Teriew the above defined contract for the period of April 2,3 ;YYI-5 LtA 0-13 NtttinnaLJ640 Poi 9 wia .05N By: (L—. Its- Executive Director/CE0 Im- LI-A its: All Name printed or typed: Date EXHIBIT 2 ANNUAL RENEWAL OF AGREEMENT Made by and BetvNeen CXT Inc. (Vendor) 3808 North Sullivan, Building #7 Spokane Valley, WA 99216 and National Joint Powers Alliance( (NJPA) 202 12" Street NE Staples, MN 56479 Phone.- (218) 894-1930 Whereas: "Vendor" and "NA'A" have entered into an "Acceptance and Award 4022113-CX'I"' fbr the procurement of Playground and Recreation Related riquipment, Accessories and Supplies, and having a maturity date or April 23, 2017, and which are subJect, to annual renewals at the option of both parties. Now therefore: "Vendoe'and "NJPA" hereby desire and agree to extend and renew the above defined contract for the period of April 23, 2014 to ri 2r(11w -,-----, "rational joint,' o1v pan teo- By: Its: Executive Director/CEO Name printed or Date By: Name printed or typed: r A (LM, I;z U 4z (0 f4t Date Its: V —ATj sjoA 50-19�t MAvA(.Qt 1�/ I .'If youdo not desire to extend contract, please sign below and return this agreement. Discontinue,, We desire to discontinue the contract. Date: gnature: ..... . ...... EXHIBIT 2 011 � A (To be completed only by NJPA) Proposer's full legal name National oint Powers Allia nce (NMIA) 11 1 Vendor Name Vendor Authorized signature: . . .......... . .... . ..... . . . .... . ...... . ... .................. .. . ... ...... . . ..... It (Name printed or typed) Title: A5,C, EXeCUted this day of 20, NJ PA Contract Number #022113 mmmm 44 Revision 1....7 -1.3 EXHIBIT 2 FORM D Formal Offering of Proposal (To be completed Only by Proposer) Company Name: CKT Date, Z - 17— - �,3 Company Address: -'A-> L4A v At o,-, i taped -7 Cit : SPU State: Contact Person . ........ G-R-..... . 5 ...,..C...-..I ............ Title: . ...... 5 Authorized Signature (ink only): (Name printed or typed) 43 Revilvion 1.- 7- 13 National Joint Powers Alliance (herein NJPA) REQUEST FOR PROPOSAL (herein RFP) for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT ACCESSORIES, AND SUPPLIES RFP Opening February 21, 2013 8:00 A.M. Central Time At the offices of the National Joint Powers Alliance® 20212 th Street Northeast, Staples, MN 56479 RFP #022113 The National Joint Powers Alliance® (NJPA), on behalf of NJPA and its current and potential Member agencies to include all Government, Higher Education, K12 Education, Non - Profit, and all other Public Agencies located nationally in all fifty states and potentially internationally, issues this Request For Proposal (RFP) to result in a national contract solution for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Details of this RFP are available beginning January 9, 2013 and continuing until January 25, 2013. Details may be obtained by letter of request to Gregg Meierhofer, NJPA, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479, or by e -mail at RFP @njpacoop.org. Proposals will be received until February 20, 2013 at 4:30 p.m. Central Time at the above address and opened February 21, 2013 at 8:00 A.M. Central Time. Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 RFP Timeline January 9, 2013 Publication of RFP in the print and online Minneapolis Star Tribune, in the print and online Daily Journal of Commerce within the State of Oregon, the NJPA website, and on the website of noticetobidders.com January 25, 2013 Deadline for RFP requests January 29, 2013 Pre- Proposal Conference (webcast — conference call - Connection info 10 :00 A.M. Central Time sent to all inquirers two business days prior to the event) February 20, 2013 Deadline for Submission of Proposals 4:30 P.M. Central Time February 21, 2013 Public Opening of Proposals 8:00 A.M. Central Time Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 2. 4. EXHIBIT 2 Methods and guidelines for submitting questions are detailed within the body of this document. TABLE OF CONTENTS INTRODUCTION A. About NJPA B. Joint Exercise of Powers Laws C. Why Respond to a National Cooperative Procurement Contract D. The Intent of This RFP E. Scope of This RFP F. Expectations for Equipment/Products and Services Being Proposed G. Solutions Based Solicitation H. Inquiry Period 1. Pre - Proposal Conference DEFINITIONS A. Proposer— Vendor B. Contract C. Time D. Proposer's Response E. Currency F. FOB INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. Pre - Proposal Conference B. Identification of Key Personnel C. Proposer's Exceptions to Terms and Conditions D. Formal Instructions to Proposers E. Questions and Answers About This RFP F. Modification or Withdrawal of a Submitted Proposal G. Value Added Attributes, Products /Services H. Certificate of Insurance I. Order Process and /or Funds Flow J. Administrative Fees PRICING STRATEGIES A. Line -Item Pricing B. Percentage Discount From Catalog or Category C. Hot List Pricing D. Ceiling Price E. Volume Price Discounts F. Sourced Product/Equipment /Open Market Items G. Cost Plus a Percentage of Cost H. Total Cost of Acquisition I. Requesting Product and Service Additions /Deletions J. Requesting Pricing Changes K. Price and Product Changes Format L. Single Statement of Pricing — Historical Record of Pricing M. Payment Terms 2 Revision 1 -7 -13 N. Sales Tax O. Shipping and Shipping Program P. Normal Working Hours 5. MARKETING PLAN 6. PROPOSAL OPENING PROCEDURE 7. EVALUATION OF PROPOSALS A. Proposal Evaluation Process B. Proposer Responsiveness C. Proposal Evaluation Criteria D. Other Consideration E. Cost Comparison F. Product Testing G. Past Performance Information H. Waiver of Formalities 8. POST AWARD OPERATING ISSUES A. Subsequent Agreements B. NJPA Member Sign -up Procedure C. Reporting of Sale Activity D. Audits E. Hub Partner F. Trade -Ins G. Out of Stock Notification H. Termination of a Contract resulting from this RFP 9. GENERAL TERMS AND CONDIITONS A. Advertisement of RFP B. Advertising a Contract Resulting From This RFP C. Applicable Law D. Assignment of Contract E. List of Proposers F. Captions, Headings, and Illustrations G. Data Practices H. Entire Agreement I. Force Majeure J. Gratuities K. Hazardous Substances L. Legal Remedies M. Licenses N. Material Suppliers and Sub - Contractors O. Non - Wavier of Rights P. Protests of Awards Made Q. Provisions Required by Law R. Right to Assurance S. Suspension or Disbarment Status T. Affirmative Action U. Severability V. Relationship of Parties 10. FORMS A, B, C, D, E,F,G &P 11. PRE - SUBMISSION CHECKLIST EXHIBIT 2 1. INTRODUCTION A. ABOUT NJPA 1_1 The National Joint Powers Alliance®- (NJPA)- is a public agency serving as a national municipal contracting agency established under the Service Cooperative statute by Minnesota Legislative Statute § 123A.21 with the authority to develop and offer, among other services, cooperative procurement services to its membership. Eligible membership and participation includes states, cities, counties, all government agencies, both public and non - public educational agencies, colleges, universities and non - profit organizations. 1_2 Under the authority of Minnesota state laws and enabling legislation, NJPA facilitates a competitive bidding and contracting process on behalf of the needs of itself and the needs of current and potential member agencies nationally. This process results in national procurement contracts with various Vendors of products /equipment and services which NJPA Member agencies desire to procure. These procurement contracts are created in compliance with applicable Minnesota Municipal Contracting Laws. A complete listing of NJPA cooperative procurement contracts can be found at http: / /www.njpacoop.org /contract -purchasing- sol „utiops /contracts,. 1_3 NJPA is a public agency governed by publicly elected officials that serve as the NJPA Board of Directors. NJPA's Board of Directors calls for all proposals, awards all Contracts, and hosts those resulting Contracts for the benefit of its own and its Members use. 1.3.1 Subject to Approval of the NJPA Board: NJPA contracts are awarded by the action of NJPA Board of Directors. This action is based on the open and competitive bidding process facilitated by NJPA. The evaluation and resulting recommendation is presented to the Board of Directors by the NJPA Proposal Evaluation Committee. 1_4 NJPA currently serves over 47,000 member agencies nationally. Both membership and utilization of NJPA contracts continue to expand, due in part to the increasing acceptance of Cooperative Purchasing throughout the government and education communities nationally. B. JOINT EXERCISE OF POWERS LAWS 1_5 NJPA cooperatively shares those contracts with its Members nationwide through various "Joint Exercise of Powers Laws” established in Minnesota and other States. The Minnesota "Joint Exercise of Powers Law" is Minnesota Statute §471.59 which states "Two or more governmental units ... may jointly or cooperatively exercise any power common to the contracting parties..." Similar Joint Exercise of Powers Laws exists within the laws of each State of the United States. This Minnesota Statute allows NJPA to serve Member agencies located in all other states. Municipal agencies nationally have the ability to participate in cooperative purchasing activities as a result of specific laws of their own state. These laws can be found on our website at http: / /www.nipacoop.org /contract- purchasing- solutions /legal- authority/ state - procurement,- re,S,o,urces. C. WHY RESPOND TO A NATIONAL COOPERATIVE PROCUREMENT CONTRACT 1_6 National Cooperative Procurement Contracts create value for Municipal and Public Agencies, as well as for Vendors of products /equipment and services in a variety of ways: 1.6.1 National cooperative contracts potentially save the time and effort of Municipal and Public Agencies who would have been otherwise charged with soliciting vendor responses to individual RFP's, resulting in individual contracts, to meet the procurement needs of their respective agencies. Considerable time and effort is also potentially saved by the Vendors who would have had to otherwise respond each of those individual RFPs. A single, nationally 3 Revision 1 -7 -13 EXHIBIT 2 advertised RFP, resulting in a single, national cooperative contract can potentially replace thousands of individual RFPs for the same products /services that might have been otherwise advertised by individual NJPA member agencies. 1.6.2 NJPA contracts offer our Members nationally leveraged volume purchasing discounts. Our contract terms and conditions offer the opportunity for Vendors to recognize individual member procurement volume commitment through additional volume based contract discounts. 1_7 State laws that permit or encourage cooperative purchasing contracts do so with the belief that cooperative efficiencies will result in lower prices, better overall value, and considerable time savings. 1_8 The collective purchasing power of thousands of NJPA Member agencies nationwide offers the opportunity for volume pricing discounts. Although no sales or sales volume is guaranteed by an NJPA Contract resulting from this RFP, substantial volume is anticipated and volume pricing is requested and justified. 1_9 NJPA and its Members desire the best value for their procurement dollar as well as a competitive price. Pre - competed procurement contracts offer NJPA and its Member agencies the ability to directly compare non -price factors in their procurement analysis. Vendors have the opportunity to display and highlight value added attributes of their company, equipment/products and services without constraints of a typical individual proposal process. D. THE INTENT OF THIS RFP 1.10. A national contract awarded by the NJPA Board of Directors: The intent of this RFP is to award a national contract by the action of the NJPA Board of Directors. This action will be influenced by the recommendation of the NJPA Proposal Evaluation Committee, and as a result of the competitive proposal and evaluation process which has been designed to reflect the best interests of NJPA and its Member agencies. NJPA is seeking the most responsive Vendor relationship(s) to meet this need. The goal and intent of this RFP is to follow through with an award and contract, which will be marketed nationally through a cooperative effort between the awarded vendor(s) and NJPA. 1.11 NJPA's primary intent is to establish and provide a national cooperative procurement contract, offering opportunities for NJPA and our Member agencies to procure quality product/equipment and services as desired and needed. Contracts are expected to offer price levels reflective of the potential and collective volume of NJPA and the nationally established NJPA membership base. 1.11.1 Beyond our primary intent, NJPA further desires to: • Award a four year term contract with a fifth year contract option resulting from this RFP; • Offer and apply any applicable technological advances throughout the term of a contract resulting from this RFP; • Deliver "Value Added" aspects of the company, equipment /products and services as defined in the "Proposer's Response "; • Deliver wide spectrums of solutions to meet the needs and requirement of NJPA and NJPA Member agencies. • Award an exclusive contract to the most responsive vendor when it is deemed to be in the best interest of NJPA and the NJPA Member agencies. 1.12 Non - Manufacturer Awards: NJPA reserves the right to make an award related to this invitation to a non - manufacturer or dealer /distributor if such action is in the best interests of NJPA and its Members. 4 Revision 1 -7 -13 EXHIBIT 2 1.13 Exclusive or Multiple Awards: Based on the goals and scope of this RFP, NJPA is requesting responders to demonstrate their ability to serve the needs of NJPA's national membership. It is NJPA's intent and desire to award a contract to a single exclusive Vendor to serve our membership's needs. To meet the goals of this RFP, NJPA reserves the right to award a Contract to multiple Proposers where the result of the responding Proposers justifies a multiple award and multiple contracts are deemed to be in the best interests of NJPA Member agencies. E. SCOPE OF THIS RFP 1.14 The scope, goal and intent of this RFP is to award a contract to a qualifying vendor defined as a manufacturer, provider, or dealer /distributor, established as a Proposer, and deemed responsive through our open and competitive proposal process. Vendors will be awarded contracts based on the proposal and responders demonstrated ability to meet the expectations of the RFP and demonstrate the overall highest valued solutions which meet and /or exceed the current and future needs and requirements of NJPA and its Member agencies nationally within the scope of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Qualifying Proposers who are able to anticipate the current and future needs and requirements of NJPA and NJPA member agencies; demonstrate the knowledge of any and all applicable industry standards, laws and regulations; and possess the willingness and ability to distribute, market to and service NJPA Members in all 50 states are preferred. NJPA requests proposers submit their entire product line as it applies and relates to the scope of this RFP. All proposals deemed responsive will be evaluated based on their ability to provide the overall highest value to NJPA and NJPA Member agencies. One of the measures of overall highest value will be the proposed breadth and depth of products and services. 1.15 Best and Most Responsive — Responsible Proposer: It is the intent of NJPA to award a Contract to the best and most responsible and responsive Proposer(s) offering the best overall quality and selection of equipment/products and services meeting the commonly requested specifications of the NJPA and NJPA Members, provided the Proposer's Response has been submitted in accordance with the requirements of this RFP. 1.16 Sealed Proposals: NJPA will receive sealed proposal responses to this RFP in accordance with accepted standards set forth in the Minnesota Procurement Code and Uniform Municipal Contracting Law. Awards may be made to responsible and responsive Proposers whose proposals are determined in writing to be the most advantageous to NJPA and its current or qualifying future NJPA Member agencies. 1.17 Use of Contract: Any Contract resulting from this solicitation shall be awarded with the understanding that it is for the sole convenience of NJPA and its Members. NJPA and /or its members reserve the right to obtain like product /equipment and services solely from this Contract or from another contract source of their choice or from a contract resulting from their own procurement process. 1.18 NJPA's interest in a contract resulting from this RFP: Not withstanding its own use, to the extent NJPA issues this RFP and any resulting contract for the use of its Members, NJPA's interests and liability for said use shall be limited to the competitive proposal process performed and terms and conditions relating to said contract and shall not extend to the products, services, or warranties of the Awarded Vendor or the intended or unintended effects of the product/equipment and services procured there from. 1.19 Awarded Vendor's interest in a contract resulting from this RFP: Awarded Vendors will be able to offer to NJPA, and current and potential NJPA Members, only those products /equipment and services specifically awarded on their NJPA Awarded Contract(s). Awarded Vendors may not offer as "contract compliant ", products /equipment and services which are not specifically identified and priced in their NJPA Awarded Contract. 1.20 Sole Source of Responsibility- NJPA desires a "Sole Source of Responsibility" Vendor meaning the Vendor will take sole responsibility for the performance of delivered products /services. NJPA also desires sole responsibility with regard to: Revision 1 -7 -13 EXHIBIT 2 1.20.1 Scope of Products /Services: NJPA desires a provider for the broadest possible scope of products /equipment and services being proposed over the largest possible geographic area and to the largest possible cross - section of NJPA current and potential Members. 1.20.2 Vendor use of sub- contractors in sourcing or delivering product /equipment and services: NJPA desires a single source of responsibility for equipment /products and services proposed. Proposers are assumed to have sub - contractor relationships with all organizations and individuals whom are external to the Proposer and are involved in providing or delivering the product /equipment and services being proposed. Vendor assumes all responsibility for the equipment /products and services and actions of any such Sub - Contractor. 1.21 Additional Definitions for the scope of this solicitation. 1.21.1 In addition to PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES, this solicitation should be read to include, but not limited to: 1.21.1.1 N/A 1.21.2 NJPA reserves the right to limit the scope of this solicitation for NJPA and current and potential NJPA member agencies. 1.22 Suggested Solutions Options 1.22.1 All potential Proposers are assumed to be professionals in their respective fields. As professionals you are deemed to be intimately familiar with the spectrum of NJPA and NJPA Members' needs and requirements with respect to the scope of this RFP. 1.22.2 With this intimate knowledge of NJPA and NJPA Members' needs, Proposers are instructed to provide their proposal response in a format describing their solutions to those current and future needs and requirements. Proposers should take care to be economical in their response to this RFP. 1.22.3 Multiple solutions to the needs of NJPA and NJPA Members are possible. Examples could include: 1.22.3.lEquipment /Products Only Solution: Equipment /products Only Solution may be appropriate for situations where NJPA or NJPA Members possess the ability, either in- house or through local third party contractors, to properly install and bring to operation those equipment /products being proposed. 1.22.3.2 Turn -Key Solutions: A Turn -Key Solution is a combination of equipment /products and services which provides a single price for equipment/products, delivery, and installation to a properly operating status. Generally this is the most desirable solution as NJPA and NJPA Members may not possess, or desire to engage, personnel with the necessary expertise to complete these tasks internally or through other independent contractors 1.22.3.3 Good, Better, Best: Where appropriate and properly identified, Proposers are invited to offer the CHOICE of good — better — best multiple grade solutions to NJPA and NJPA Members' needs. 6 Revision 1 -7 -13 EXHIBIT 2 1.22.3.4 Proven — Accepted — Leading Edge Technology: Where appropriate and properly identified, Proposers are invited to provide an appropriate identified spectrum of technology solutions to compliment or enhance the functionality of the proposed solutions to NJPA and NJPA Members' needs both now and into the future. 1.23 Overlap of Scope: 1.23.1 When considering equipment, products, or groups of product /equipment and services submitted as a part of your response, and whether inclusion of such will fall within a "Scope of Proposal ", please consider the validity of an inverse statement. • For example, pencils and post -it -notes can generally be classified as office supplies and office supplies generally include pencils and post -it- notes. • In contrast, computers (PCs and peripherals) can generally be considered office supplies; however, the scope of office supplies does not generally include computer servers and infrastructure. • In conclusion: With this in mind, individual products and services must be examined individually by NJPA, from time to time and in its sole discretion, to determine their compliance and fall within the original "Scope" as intended by NJPA. 1.24 Geographic Area to be Proposed: This RFP invites proposals to provide PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to NJPA and NJPA Members throughout the entire United States and possibly internationally. Proposers will be expected to express willingness to explore service to NJPA Members located abroad; however the lack of ability to serve Members outside of the United States will not be cause for non - award. The ability and willingness to serve Canada, for instance, will be viewed as a value -added attribute. 1.25 Manufacturer as a Proposer: If the Proposer is a Manufacturer or wholesale distributor, the response received will be evaluated on the basis of a response made in conjunction with that Manufacturer's authorized Dealer Network. Unless stated otherwise, a Manufacturer or wholesale distributor Proposer is assumed to have a documented relationship with their Dealer Network where that Dealer Network is informed of, and authorized to accept, purchase orders pursuant to any Contract resulting from this RFP on behalf of the Manufacturer or wholesale distributor Proposer. Any such dealer will be considered a sub - contractor of the Proposer /Vendor. The relationship between the Manufacturer and wholesale distributor Proposer and its Dealer Network may be proposed at the time of the proposed submission if that fact is properly identified. 1.26 Dealer /Re- seller as a Proposer: If the Proposer is a dealer or re- seller of the products and /or services being proposed, the response will be evaluated based on the Proposer's authorization to provide those products and services from their manufacturer. Where appropriate, Proposers must document their authority to offer those products and /or services. 1.27 Contract Term: At NJPA's option a contract resulting from this RFP will become effective either; 1) The date awarded by the NJPA Board of Directors, or 2) The day following the expiration date of an existing NJPA procurement contract for the same or similar product/equipment and services. 1.27.1 NJPA is seeking a Contract base term of four years subject to annual renewals as allowed by Minnesota Contracting Law. Full term is expected, however will only occur through successful annual renewals. One additional one -year renewal- extension may be offered by NJPA to Vendor beyond the original four year term if NJPA deems such action to be in the best interests of NJPA and its Members. 7 Revision 1 -7 -13 EXHIBIT 2 1.28 Minimum Contract Value: NJPA anticipates considerable activity resulting from this RFP and subsequent award; however, no commitment of any kind is made concerning actual quantities to be acquired. NJPA does not guarantee usage. Usage will depend on the actual needs of the NJPA Members and the value of the awarded contract. 1.29 Estimated Contract Volume: Estimated quantities and sales volume are based on potential usage by NJPA and NJPA Member agencies nationally. 1.30 Largest Possible Solution: If applicable, Contracts will be awarded to Proposer(s) able to deliver a proposal meeting the entire needs of NJPA and its Members within the scope of this RFP. NJPA prefers Proposers submit their complete product line of products and services described in the scope of this RFP. NJPA reserves the right to reject individual, or groupings of specific equipment /products and services proposals as a part of the award. 1.31 Contract Availability: This Contract must be available to all current and potential NJPA Members who choose to utilize this NJPA Contract to include all governmental and public agencies, public and private primary and secondary education agencies, and all non - profit organizations nationally. 1.32 Proposer's Commitment Period: In order to allow NJPA the opportunity to evaluate each proposal thoroughly, NJPA requires any response to this solicitation be valid and irrevocable for ninety (90) days after the date proposals were opened regarding this RFP. F. EXPECTATIONS FOR EQUIPMENT /PRODUCTS AND SERVICES BEING PROPOSED 1.33 Industry Standards: Except as contained herein, the specifications or solutions for this RFP shall be those accepted guidelines set forth by the PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES industry, as they are generally understood and accepted within that industry across the nation. Submitted products /equipment, related services, and their warranties and assurances are required to meet and /or exceed all current, traditional and anticipated needs and requirements of NJPA and its Members. 1.33.1 Deviations from industry standards must be identified by the Proposer and explained how, in their opinion, the equipment /products and services they propose will render equivalent functionality, coverage, performance, and /or related services. Failure to detail all such deviations may comprise sufficient grounds for rejection of the entire proposal. 1.33.2 Technical Descriptions /Specifications. Proposers must supply sufficient information to: • Demonstrate the Proposer's knowledge of industry standards, and • Identify the equipment/products and services being proposed, and • Differentiate those products and services from others. Excessive technical descriptions and specifications which, in the opinion of NJPA unduly enlarge the proposal response may reduce evaluation points awarded on Form G. 1.34 Important note: NJPA does not typically provide product and service specifications; rather NJPA is requesting an industry standard or accepted specification for the requested product /equipment and services. Where specific line items are specified, those line items should be considered the minimum which can be expanded by the Proposer to deliver the Proposer's "Solution" to NJPA and NJPA Members' needs. 1.35 Commonly used Product /Equipment and Services: It is important that the equipment /products and services submitted are the equipment /products and services commonly used by public sector entities. Revision 1 -7 -13 EXHIBIT 2 1.36 New Current Model Product /Equipment: Proposals submitted shall be for new, current model products and services with the exception of certain close -out products allowed to be offered on the Proposer's "Hot List" described herein. 1.37 Compliance with laws and standards: All items supplied on this Contract shall comply with any current applicable safety or regulatory standards or codes. 1.38 Delivered and operational; Products /equipment offered herein are to be proposed based upon being delivered and operational at the NJPA Member's site. Exceptions to "delivered and operational" must be explicitly disclosed in the "Total Cost of Acquisition" section of your proposal response. 1.39 Warranty: The Proposer warrants that all products, equipment, supplies, and services delivered under this Contract shall be covered by the industry standard or better warranty. All products and equipment should carry a minimum industry standard manufacturer's warranty that includes materials and labor. The Proposer has the primary responsibility to submit product specific warranty as required and accepted by industry standards. Dealer /Distributors agree to assist the purchaser in reaching a solution in a dispute over warranty's terms with the manufacturer. Any manufacturer's warranty which is effective past the expiration of the warranty will be passed on to the NJPA member. Failure to submit a minimum warranty may result in non- award. 1.40 Proposer's Warrants: The Proposer warrants all products /equipment and related services furnished hereunder will be free from liens and encumbrances; defects in design, materials, and workmanship; and will conform in all respects to the terms of this RFP including any specifications or standards. In addition, Proposer /Vendor warrants the products /equipment and related services are suitable for and will perform in accordance with the purposes for which they were intended. G. SOLUTIONS BASED SOLICITATION 1.41 NJPA solicitations and contract process will not offer specific specifications for proposers to meet or base your response on. This RFP is a "Solutions Based Solicitation ". This means the proposers are asked to understand and anticipate the current and future needs of NJPA and the nationally located NJPA membership base, within the scope of this RFP, and including specifications commonly desired or required by law or industry standards. Your proposal will be evaluated in part on your demonstrated ability to meet or exceed the needs and requirements of NJPA and our member agencies within the defined scope of this RFP. H. INQUIRY PERIOD 1.42 The inquiry period shall begin at the date of first advertisement and continue to the "Deadline for Requests ". RFP packages shall be distributed to Potential Bidders during the inquiry period. The purpose for the defined "Inquiry Period" is to provide a finite group of Potential Bidders to invite to, and attend the pre -bid conference. I. PRE -BID CONFERENCE 1.43 All Potential Bidders inquiring during the inquiry period will be invited to the OPTIONAL "Pre -Bid Conference" via the e-mail address used to make their inquiry. The purpose of the pre -bid conference is to allow Potential Bidders to ask questions and hear answers from their own questions and the questions of other Potential Bidders. 2. DEFINITIONS A. PROPOSER - VENDOR 9 Revision 1 -7 -13 EXHIBIT 2 2_1 Exclusive Vendor- A sole Vendor awarded in a product category. NJPA reserves the right to award to an Exclusive Vendor in the event that such an award is in the best interests of NJPA Members nationally. A Proposer that exhibits and demonstrates the ability to offer and execute an outstanding overall program, demonstrates the ability and willingness to serve NJPA current and qualifying Members in all 50 states and comply with all other requirements of this RFP, is preferred. 2_2 Potential Proposer- A person or entity requesting a copy of this RFP. 2_3 Proposer- A company, person, or entity delivering a timely response to this RFP. 2_4 Vendor- One of a number of Proposers whose proposal has been awarded a contract pursuant to this RFP. 2_5 Request for Proposal- Herein referred to as RFP B.CONTRACT 2_6 "Contract" as used herein shall mean cumulative documentation consisting of this RFP, fully executed forms C, D, F & P from the Proposer's response pursuant to this RFP, and a fully executed form E, "Acceptance and Award" with final terms and conditions. Form E will be executed on or after award and will provide final clarification of terms and conditions of the award. C. TIME 2_7 Periods of time, stated as number of days, shall be in calendar days. D. PROPOSER'S RESPONSE 2_8 A Proposer's Response is the entire collection of documents as they are received by NJPA from a Potential Proposer in response to this RFP. E. CURRENCY F. FOB 2_9 All transactions are payable in U.S. dollars on U.S. sales. All administrative fees are to be paid in U.S. dollars. 2.10 FOB stands for "Freight On Board" and defines the point at which responsibility for loss and damage of product /equipment purchased is transferred from Seller to Buyer. "FOB Destination" defines that transfer of responsibility for loss is transferred from Seller to Buyer at the Buyer's designated delivery point. 2.11 FOB does not identify who is responsible for the costs of shipping. The responsibility for the costs of shipping is addressed elsewhere in this document. 3. INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. PRE - PROPOSAL CONFERENCE 3_1 A non - mandatory pre - proposal conference will be held at the date and time specified in the time line on page one of this RFP. Conference call and web connection information will be sent to all Potential 10 Revision 1 -7 -13 EXHIBIT 2 Proposers through the same means employed in their inquiry. The purpose of this conference call is to allow Potential Proposers to ask questions regarding this RFP. Only answers issued in writing by NJPA to questions asked before or during the Pre - proposal Conference shall be considered binding. B. IDENTIFICATION OF KEY PERSONNEL 3_2 Vendor will designate one senior staff individual who will represent the awarded Vendor to NJPA. This contact person will correspond with members for technical assistance, questions or problems that may arise including instructions regarding different contacts for different geographical areas as needed. 3_3 Individuals should also be identified (if applicable) as the primary contacts for the contents of this proposal, marketing, sales, and any other area deemed essential by the Proposer. C. PROPOSER'S EXCEPTIONS TO TERMS AND CONDITIONS 3_4 Any exceptions, deviations, or contingencies a Proposer may have to the terms and conditions contained herein must be documented on Form C. 3_5 Exceptions, deviations or contingencies stipulated in Proposer's Response, while possibly necessary in the view of the Proposer, may result in disqualification of a Proposal Response. D. FORMAL INSTRUCTIONS TO PROPOSERS 3_6 It is the responsibility of all Proposers to examine the entire RFP package, to seek clarification of any item or requirement that may not be clear and to check all responses for accuracy before submitting a Proposal. Negligence in preparing a Proposal confers no right of withdrawal after the deadline for submission of proposals. 3_7 All proposals must be sent to "The National Joint Powers Alliance®, 202 12th ST NE Staples, MN 56479." 3_8 Format for proposal response: All proposals must be physically delivered to NJPA at the above address in the following format: 3.8.1 Hard copy original signed, completed, and dated forms C,D,F,I, and hard copy signed signature page only from forms A and P from this RFP, 3.8.2 Hard copies of all addenda issued for the RFP with original counter signed by the Proposer, 3.8.3 Certificate of insurance verifying the coverage identified in this RFP, 3.8.4 Two complete copies of your response on a CD (Compact Disc) or flash drive. The first copy shall be identified as the "Evaluation Copy" and the second copy will be identified as the "Public Records" copy. Both copies shall contain completed Forms A,B,C,D,F & P, your statement of products and pricing together with all appropriate attachments, a copy of your audited financial statements from previous year end(or an unaudited copy if an audited copy is not available). However, your "Public Record Copy" shall have all "Trade Secret" information redacted. You will be responsible for citing specific legal authority for each redaction as identified herein. 3_9 All Proposal forms must be submitted in English and be legible. All appropriate forms must be executed by an authorized signatory of the Proposer. Blue ink is preferred for signatures. 3.10 Proposal submissions should be submitted using the electronic forms provided. If a Proposer chooses to use alternative documents for their response, the proposer will be responsible for ensuring the content is effectively equal to the NJPA form and the document is in a format readable by NJPA. 3.11 It is the responsibility of the Proposer to be certain the proposal submittal is in the physical possession of NJPA on or prior to the deadline for submission of proposals. 11 Revision 1 -7 -13 EXHIBIT 2 3.11.1 Proposals must be submitted in a sealed envelope or box properly addressed to NJPA and prominently identifying the proposal number, proposal category name, the message "Hold for Proposal Opening ", and the deadline for proposal submission. NJPA cannot be responsible for late receipt of proposals. Proposals received by the correct deadline for proposal submission will be opened and the name of each Proposer and other appropriate information will be publicly read. 3.12 Corrections, erasures, and interlineations on a Proposer's Response must be initialed by the authorized signer in original ink on all copies to be considered. 3.13 Addendums to the RFP: The Proposer is responsible for ensuring receipt of all addendums to this RFP. 3.13.1 Proposer's are responsible for checking directly with the NJPA website for addendums to this RFP. 3.13.2 Addendums to this RFP can change terms and conditions of the RFP including the deadline for submission of proposals. E. QUESTIONS AND ANSWERS ABOUT THIS RFP 3.14 Upon examination of this RFP document, Proposer shall promptly notify the NJPA of any ambiguity, inconsistency, or error they may discover. Interpretations, corrections and changes to this RFP will be made by NJPA through addendum. Interpretations, corrections, or changes made in any other manner will not be binding and Proposer shall not rely upon such. 3.15 Submit all questions about this RFP, in writing, referencing "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to Gregg Meierhofer, NJPA 202 12th Street NE, Staples, MN 56479 or RFP @njpacoop.org. Those not having access to the Internet may call Gregg Meierhofer at (218) 894 -1930. Requests for additional information or interpretation of instructions to Proposers or technical specifications shall also be addressed to Gregg Meierhofer. NJPA urges Potential Proposers to communicate all concerns well in advance of the deadline to avoid misunderstandings. Questions received less than seven (7) days ending at 4:00 p.m. Central Time of the seventh (7`h) calendar day prior to proposal due -date cannot be answered. 3.16 If the answer to a question is deemed by NJPA to have a material impact on other potential proposers or the RFP itself, the answer to the question will become an addendum to this RFP. 3.17 If the answer to a question is deemed by NJPA to be a clarification of existing terms and conditions and does not have a material impact on other potential proposers or the RFP itself, no further documentation of that question is required. 3.18 As used in this solicitation, clarification means communication with a Potential Proposer for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the RFP. 3.19 Addenda are written instruments issued by NJPA that modify or interpret the RFP. All addenda issued by NJPA shall become a part of the RFP. Addenda will be delivered to all Potential Proposers using the same method of delivery of the original RFP material. NJPA accepts no liability in connection with the delivery of said materials. Copies of addenda will also be made available on the NJPA website at www.njpacoop.org by clicking on "Current and Pending Solicitations" and from the NJPA offices. No questions will be accepted by NJPA later than five (5) days prior to the deadline for receipt of proposals, except an addendum withdrawing the request for proposals or one that includes postponement of the date of receipt of proposals. Each Potential Proposer shall ascertain prior to submitting a Proposal that it has received all addenda issued, and the Proposer shall acknowledge their receipt in its Proposal Response. 3.20 An amendment to a submitted proposal must be in writing and delivered to NJPA no later than the 12 Revision 1 -7 -13 EXHIBIT 2 time specified for opening of all proposals. F. MODIFICATION OR WITHDRAWAL OF A SUBMITTED PROPOSAL 3.21 A submitted proposal may not be modified, withdrawn from or cancelled by the Proposer for a period of ninety (90) days following the date proposals were opened regarding this RFP. Prior to the deadline for submission of proposals, any proposal submitted may be modified or withdrawn by notice to the NJPA Manager of Bids and Contracts. Such notice shall be submitted in writing and include the signature of the Proposer and shall be delivered to NJPA prior to the deadline for submission of proposals and it shall be so worded as not to reveal the content of the original proposal. However, the original proposal shall not be physically returned to the Potential Proposer until after the official proposal opening. Withdrawn proposals may be resubmitted up to the time designated for the receipt of the proposals if they are then fully in conformance with the Instructions to Proposer. G. VALUE ADDED ATTRIBUTES, PRODUCTS /SERVICES 3.22 Examples of Value Added Attributes: Value -Added attributes, products and services are items offered in addition to the products and services being proposed which adds value to those items being proposed. The availability of a contract for maintenance or service after the initial sale, installation, and set -up may, for instance, be "Value Added Services" for products where a typical buyer may not have the ability to perform these functions. 3.23 Where to document Value Added Attributes: The opportunity to indicate value added dimensions and such advancements will be available in the Proposer's Questionnaire and Proposer's product and service submittal. 3.24 Value added equipment /products and services and expanded services, as they relate to this RFP, will be given positive consideration in the award selection. Consideration will be given to an expanded selection of "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", and advances to provide products /services, supplies meeting and /or exceeding today's industry standards and expectations. A value add would include a program or service that further serves the members needs above and possibly beyond standard expectation and complements the equipment /products and services and training. Value added could include areas of product and service, sales, ordering, delivery, performance, maintenance, technology, and service that furthers the functionality and effectiveness of the procurement process while remaining within the scope of this RFP. 3.25 Minority, Small Business, and Women Business Enterprise (WMBE) participation: It is the policy of some NJPA Members to involve Minority, Small Business, and WMBE contractors in the process to purchase product /equipment and related services. Vendors should document WMBE status for their organization AND any such status of their affiliates (i.e. Supplier networks) involved in carrying out the activities invited. The ability of a Proposer to provide "Credits" to NJPA and NJPA Members in these subject areas, either individually or through related entities involved in the transaction, will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. NJPA is committed to facilitating the realization of such "Credits" through certain structuring techniques for transactions resulting from this RFP. 3.26 Environmentally Preferred Purchasing Opportunities: There is a growing trend among NJPA Members to consider the environmental impact of the equipment /products and related services they purchase. "Green" characteristics demonstrated by responding companies will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. Please identify any Green characteristics of the product /equipment and related services in your proposal and identify the sanctioning body determining that characteristic. Where appropriate, please indicate which products have been certified as "green" and by which certifying agency. 13 Revision 1 -7 -13 EXHIBIT 2 3.27 On -Line Requisitioning systems: When applicable, on -line requisitioning systems will be viewed as a value -added characteristic. Proposer shall include documentation about user interfaces that make on- line ordering easy for NJPA Members as well as the ability to punch -out from mainstream e- Procurement or Enterprise Resource Planning (ERP) systems that NJPA Members may currently utilize. 3.28 Financing: The ability of the Proposer to provide financing options for the products and services being proposed will be viewed as a Value Added Attribute. H. CERTIFICATE OF INSURANCE 3.29 Proposer shall provide evidence of liability insurance coverage identified below in the form of an ACCORD binder form with their proposal. Upon Award issued pursuant to this contract, and prior to the execution of any commerce relating to such award, Vendor will be responsible for providing verification, in the form of an ACCORD binder identifying the coverage required below and identifying NJPA as a "Certificate Holder" and an "Additional Insured ". Vendor will be responsible to maintain such insurance coverage at their own expense throughout the term of any contract resulting from this solicitation. 3.30 Vendor, upon award, shall be required to maintain the following insurance coverage during the term of the NJPA Contract: (1) Workers Compensation insurance (Occurrence) with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. In addition, Proposer shall require all subcontractors occupying the premises or performing work under the contract to obtain an insurance certificate showing proof of Workers Compensation Coverage with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. (2) Commercial General Liability Policy per occurrence $1,000,000. (3) Business Auto Policy to include but not be limited to liability coverage on any owned, non - owned and hired vehicle used by Proposer or Proposer's personnel in the performance of this Contract. The Business Automobile Policy shall have a per occurrence limit of $1,000,000. 3.31 The foregoing policies shall contain a provision that coverage afforded under the policies will not be canceled, or not renewed or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to NJPA. Certificates of Insurance showing such coverage to be in force shall be filed with NJPA prior to commencement of any work under the contract. The foregoing policies shall be obtained from insurance companies licensed to do business nationally and shall be with companies acceptable to NJPA, which must have a minimum AM Best rating of A -. All such coverage shall remain in full force and effect during the term and any renewal or extension thereof. I. ORDER PROCESS AND /OR FUNDS FLOW 3.32 Please propose an order process and funds flow. Please choose from one of the following: 3.32.1 B -TO -G: The Business -to- Government order process and /or funds flow model involves NJPA Members issuing Purchase Orders directly to a Vendor and pursuant to a Contract resulting from this RFP. 3.32.3 Other: Please fully identify. J. ADMINISTRATIVE FEES 3.33 Proposer agrees to authorize and /or allow for an administrative fee payable to NJPA by an Awarded Vendor in exchange for its facilitation and marketing of a Contract resulting from this RFP to current and potential NJPA Members. This Administration Fee shall be: 14 Revision 1 -7 -13 EXHIBIT 2 3.33.1 Calculated as a percentage of the dollar volume of all equipment /products and services provided to and purchased by NJPA Members or calculated as reasonable and acceptable method applicable to the contracted transaction, and 3.33.2 Included in, and not added to, the pricing included in Proposer's Response to this RFP, and 3.33.3 Designed to offset the anticipated costs of NJPA's involvement in contract management, facilitating marketing efforts, Vendor training, and any order processing tasks relating to the Contract resulting from this RFP. 3.33.3.1 Typical administrative fees for a B -TO -G order process and funds flow is 2.0 %. 3.34 The opportunity to propose these factors and an appropriate administrative fee is available in the Proposer's Questionnaire. 4. PRICING STRATEGIES 4_1 NJPA requests Potential Proposers respond to this RFP only if they are able to offer a wide array of equipment /products and services and at prices lower and better value than what they would ordinarily offer to single government agency, larger school district, or regional cooperative. 4_2 RFP is an "Indefinite Quantity Product /Equipment and Related Service Price and Program Request" with potential national sales distribution and service. Proposers are agreeing to fulfill Contract obligations regarding each product/equipment to which you provide a description and a price. If Proposer's solution requires additional supporting documentation, describe where it can be found in your submission. If Proposer offers the solution in an alternative fashion, describe your solution to be easily understood. All pricing must be copied on a CD along with other requested information as a part of a Proposer's Response. 4_3 Regardless of the payment method selected by NJPA or NJPA Member, a total cost associated with any purchase option of the equipment/products and services and being supplied must always be disclosed at the time of purchase. 4_4 Primary Pricing /Secondary Pricing Strategies- All Proposers will be required to submit "Primary Pricing" in the form of either "Line -Item Pricing," or "Percentage Discount from Catalog Pricing," or a combination of these pricing strategies. Proposers are also encouraged to offer OPTIONAL pricing strategies such as but not limited to "Hot List," "Sourced Product /Equipment" and "Volume Discounts," as well as financing options such as leasing. A. LINE -ITEM PRICING 4_5 Line -Item pricing- A pricing format where specific individual products and /or services are offered at specific individual Contract prices. Products /equipment and /or related services are individually priced and described by characteristics such as manufacture name, stock or part number, size, or functionality. This method of pricing offers the least amount of confusion as products /equipment and prices are individually identified however, Proposers with a large number of products /equipment to propose may find this method cumbersome. In these situations, a percentage discount from catalog or category pricing model may make more sense and increase the clarity of the contract pricing format. 4_6 All Line -Item Pricing items must be numbered, organized, sectioned, including SKU's (when applicable) and easily understood by the Evaluation Committee and members. 4_7 Line -Item Pricing items are to be submitted in an Excel spreadsheet format provided and are to include all appropriate identification information necessary to discern the line item from other line items 15 Revision 1 -7 -13 EXHIBIT 2 in each Responder's proposal. 4_8 The purpose for the excel spreadsheet format for Line -Item Pricing is to be able to use the "Find" function to quickly find any particular item of interest. For that reason, Proposers are responsible for providing the appropriate product and service identification information along with the pricing information which is typically found on an invoice or price quote for such products /equipment and related services. 4_9 All products /equipment and related services typically appearing on an invoice or price quote must be individually priced and identified on the line -item price sheet, including any and all ancillary costs. 4.10 Proposers are asked to provide both a published "List" price as well as a "Proposed Contract Price" in their pricing matrix. "The published List" price will be the standard "quantity of one" price currently available to government and educational customers excluding cooperative and volume discounts. B. PERCENTAGE DISCOUNT FROM CATALOG OR CATEGORY 4.11 Percent Discount From Catalog, list or Category Pricing- A specific percentage discount from a "Catalogue or List Price" defined as a published Manufacturer's Suggested Retail Price (MSRP) for the products /equipment or related services being proposed. 4.12 Individualized percentage discounts can be applied to any number of defined product groupings. 4.13 A Percentage Discount from MSRP may be applied to all elements identified in MSRP including all Manufacturer Options applicable to the product /equipment or related service. 4.14 Accessory options requested by the customer and related to the general scope of this RFP but are not under the current contract will be priced using a "Sourced Product /equipment pricing model" as defined herein. See Section F 4.15 When a Proposer elects to use "Percentage Discount from Catalog or Category," Proposer will be responsible for providing and maintaining current published "MSRP" with NJPA and must be included in their proposal and provided throughout the term of any Contract resulting from this RFP. 4.16 NJPA reserves the right to review catalogs submitted to determine if the represented products and services reflect and relate to the scope of this RFP. Each new catalog received may have the effect of adding new product offerings and deleting products no longer carried by the Vendor. New catalogs shall apply to the Contract only upon approval of the NJPA. Non - approved use of catalogs may result in termination for convenience. New price lists or catalogs found to be offering non - contract items during the Contract may be grounds for terminating the Contract for convenience. New optional accessories for product /equipment and related services may be added to the Contract through the NJPA approval process at the time they become available. C. HOT LIST PRICING 4.17 Where applicable, NJPA also invites the Vendor, at their option, to offer a specific selection of products /services, defined as a Hot List selection offer pricing at greater discounts or related advantages than those listed in the standard Contract pricing. All product /service pricing, including the Hot List Pricing, must be submitted electronically provided in Excel format. Hot List pricing must be submitted in a Line -Item format. Providing or offering a "Hot List Selection" of equipment /products and related services is optional. Equipment /products and related services may be added or removed from the "Hot List" at any time. 4.18 Hot List program and pricing when applicable may also be used to discount and liquidate close -out 16 Revision 1 -7 -13 EXHIBIT 2 and discontinued equipment/products and related services as long as those close -out and discontinued items are clearly labeled as such. Current ordering process and administrative fees apply. This option must be published and made available to all NJPA Members. 4.19 Hot List Program and Pricing is allowed to change at the discretion of the Vendor within the definition of Hot List Pricing. The Vendor is responsible to maintain current Hot List product/equipment and related service descriptions and Pricing with NJPA. D. CEILING PRICE 4.20 Proposal pricing is to be established as a ceiling price. At no time may the proposed equipment /products and related services be offered pursuant to this Contract at prices above this ceiling price without request and approval by NJPA. IMPORTANT NOTE: Contract prices may be reduced to allow for volume considerations and commitments and to meet the specific and unique needs of an NJPA Member. 4.21 Allowable specific needs may include competitive situations, certain purchase volume commitments or the creation of custom programs based on the individual needs of NJPA Members. E. VOLUME PRICE DISCOUNTS 4.22 Proposers are free to offer volume commitment discounts from the contract pricing documented in a Contract resulting from this RFP. Volume considerations shall be determined between the Vendor and individual NJPA Members on a case -by -case basis. 4.23 Nothing in this Contract establishes a favored member relationship between the NJPA or any NJPA Member and the Vendor. The Vendor will, upon request by NJPA Member, extend this same reduced price offered or delivered to another NJPA Member provided the same or similar volume commitment, specific needs, terms, and conditions, a similar time frame, seasonal considerations, locations, competitively situations and provided the same manufacturer support is available to the Vendor. 4.24 All price adjustments are to be offered equally to all NJPA Members exhibiting the same or substantially similar characteristics such as purchase volume commitments, and timing including the availability of special pricing from the Vendor's suppliers. F. SOURCED PRODUCT /EQUIPMENT /OPEN MARKET ITEMS 4.25 NJPA or NJPA Members may from time to time, request product/equipment and /or equipment/products and related services that are within the related scope of this RFP, which are not included in an awarded Vendor's line -item product /equipment and related service listing or "list or catalog ". These items are known as Sourced Product /Equipment or Open Market Items. 4.26 An awarded Vendor resulting from this RFP may "Source" equipment/products and related services for NJPA or an NJPA Member to the extent they: 4.26.1 Identify all such equipment, products and services as "Sources Product /Equipment " or "Open Market Items" on any quotation issued in reference to an NJPA awarded contract, and provided to either NJPA or an NJPA Member, and 4.26.2 All applicable acquisition regulations pertaining to the purchase of such equipment, products and services have been followed, as defined by NJPA or the NJPA Member receiving quotation from Vendor, and 4.26.3 NJPA or the NJPA Member has determined the prices as quoted by Vendor for such equipment, products and services are deemed to be fair and reasonable and are acceptable to the 17 Revision 1 -7 -13 EXHIBIT 2 member. G. COST PLUS A PERCENTAGE OF COST 4.27 Cost plus a percentage of cost as a primary pricing mechanism is not desirable. H. TOTAL COST OF ACQUISITION 4.28 The Total Cost of Acquisition for the equipment /products and related services being proposed, including those payable by NJPA Members to either the Proposer or a third party, shall be defined as: • The cost of the proposed equipment /products product/equipment and related services delivered and operational for its intended purpose in the end - user's location. 4.29 For example, if you are proposing equipment /products only (IE, FOB Proposer's dock) your proposal would identify your deviation from the "Total Cost of Acquisition" of contracted equipment /products. The "Proposal should reflect that the contract does not provide for delivery beyond Proposer's dock, nor any set -up activities or costs associated with those delivery or set -up activities." In contrast, proposed terms including all costs for product /equipment and services delivered and operational at to the end - user's location would require a disclosure of "None ". 1. REQUESTING PRODUCT /EQUIPMENT AND RELATED SERVICE ADDITIONS /DELETIONS 4.30 Requests for product /equipment and related services, price changes, additions, deletions, or any related contract changes must be made in written form and shall be subject to approval by NJPA. 4.31 New equipment /products and related services may be added to a Contract resulting from this RFP at any time during that Contract to the extent those equipment /products and related services are within the scope of this RFP. Those requests are subject to review and approval of NJPA. Allowable new equipment /products and related services generally include new updated models of equipment /products and related services and or enhanced services previously offered which could reflect new technology and improved functionality. 4.32 Proposers representing multiple manufacturers, or carrying multiple related product lines may also request the addition of new manufacturers or product lines to their Contract to the extent they remain within the scope of this RFP. 4.33 NJPA's due diligence in analyzing any request for change is to determine if approval of the request is 1) within the scope of the original RFP, and 2) in the "Best Interests of NJPA and NJPA Members." We are looking for consistent pricing and delivery mechanisms and an understanding of what value the proposal brings to NJPA and NJPA Members. 4.34 Documenting the "Best Interests of NJPA and NJPA Members" when outdated equipment is being deleted is fairly straight forward since the product is no longer available and not relevant to the procurement Contract. 4.35 Requests must be in the form of 1) a cover letter to NJPA a) asking to add the product /equipment line, b) making a general statement identifying how the products to be added are within the scope of the original RFP, and c) making a general statement identifying that, if appropriate, the pricing is consistent with the existing Contract pricing and 2) the detail as to what is being added at what price will then be an attachment to that cover letter. Pending approval of your request by NJPA you will need to provide a complete re- statement of all pricing including all new prices /products AND existing prices and products /equipment. 4.36 NJPA's intent is to encourage Proposers to provide and document NJPA's due diligence in a clear and concise one page format on which we can approve and sign our acknowledgment and acceptance. 18 Revision 1 -7 -13 EXHIBIT 2 This information must ultimately come from Proposers, and NJPA is requiring it in this format. J. REQUESTING PRICING CHANGES 4.37 Price Decreases: Requests for standard Contract price decrease adjustments (percentage discount increases) are encouraged and will be allowed at any time based on market place efficiencies, market place competitiveness, improved technologies and /or improved methods of delivery or if Vendor engages in innovative procurement practices such as strategic sourcing, aggregate and volume purchasing. NJPA expects Vendors to propose their very best prices and anticipates price reductions due to the advancement of technologies and market place efficiencies. Documenting the "Best Interests of NJPA and NJPA Members" is highly valued when we are documenting price reductions. 4.38 Price increases: Requests for standard contract price increases (or the inclusion of new generation products /equipment /services at higher prices) can be made at any time. These requests will again be evaluated by NJPA based on the best interests of NJPA and NJPA Members. As an example, typically acceptable requests for price increases for existing equipment/products and services may cite increases to the Vendor of input costs such as petroleum or other applicable commodities. Typically acceptable requests for price increases for new equipment /products and services enhance or improve on the current solutions currently offered as well as cite increases in utility of the new compared to the old. Vendors are requested to reasonably document the claims cited in their requests. Your written request for a price increase, therefore, is an exercise in describing what you need, and a justification for why you need it in sufficient detail for NJPA to deem such change to be in the best interests of ourselves and our Members. 4.39 Price Change Request Format: An awarded Proposer will use the format of a cover letter requesting price increases in general terms (a 5% increase in product line X) and stating their justification for that price increase (due to the recent increase in petroleum or raw material costs) by product category. Specific details for the requested price change must be attached to the request letter identifying product/services where appropriate, both current and proposed pricing. Attachments such as letters from suppliers announcing price increases are appropriate for documenting your requests here. K. PRICE AND PRODUCT CHANGES FORMAT 4.40 NJPA's due diligence regarding product and price change requests is to consider the reasonableness of the request and document consideration on behalf of our members. Submit the following documentation to request a pricing change: 4.40.1 A cover letter: a. Please address the following subjects in your cover letter: i. What product /equipment and related service prices are changing? ii. How much are the prices changing? iii. Why are the prices changing? iv. Any additions or deletions from the previous product /equipment and related services list and the reason for the changes. b. The specifics of the product /equipment and price changes will be listed in the excel spreadsheets identified below. Please take a more general "Disclosure" approach to identifying changes in the cover letter. i. If applicable and for example, indicate "All paper equipment /products and services increased 5 % in price due to transportation and fuel costs." ii. If applicable, for instance, indicate, "The 6400 series floor polisher added to the product list is the new model replacing the 5400 series. The 6400's 3% price increase reflects the rate of inflation over the past year. The 5400 series is now included in the "Hot List" at a 20% discount from previous pricing until remaining inventory is liquidated." 19 Revision 1 -7 -13 EXHIBIT 2 4.40.2 An excel spreadsheet identifying all equipment /products and services being offered and their pricing. Each subsequent pricing update will be saved using the naming convention of "(Vendor Name) pricing effective XX /XX /XXXX." a. Include all equipment /products and services regardless of whether their prices have changed. By observing this convention we will: i. Reduce confusion by providing a single, easy to find, current pricing sheet for each Vendor. ii. Create a historical record of pricing. L. SINGLE STATEMENT OF PRICING /HISTORICAL RECORD OF PRICING 4.41 Initially; and again with each request for product addition, deletion, and /or pricing change; you must state all pricing for all equipment /products and services available. The request for price changes described above will serve as the documentation for those requested changes. Each complete pricing list will be identified by its "Effective Date." Each successive price listing identified by its "Effective Date" will create a "Product and Price History" for the Contract. 4.42 Proposers may use the multiple tabs available in an Excel workbook to separately list logical product groupings or to separately list product and service pricing as they see fit. 4.43 All equipment/products and services together with their pricing, whether changed within the request or remaining unchanged, will be stated on each "Pricing" sheet created as a result of each request for product, service, or pricing change. 4.44 Each subsequent "Single Statement of Product and Pricing" will be archived by its effective date therefore creating a product and price history for any Contract resulting from this RFP. Proposers are required to create a historical record of pricing annually by submitting updated pricing referred to as a "Single Statement of Product/Equipment and Related Services Contract Price Update ". This pricing update is required at a minimum of once per contract year. M. PAYMENT TERMS 4.45 Payment terms will be defined by the Proposer in the Proposer's Response. Proposers are encouraged to offer payment terms through P Card services if applicable to the customary method of procurement relating to the contracted product /equipment and related services. 4.46 Leasing- If available, identify any leasing programs available to NJPA and NJPA Members as part of your proposal. Proposers should submit an example of the lease agreement to be used. Proposers should identify: • General leasing terms such as: • The percentage adjustment over /under an index rate used in calculating the internal rate of return for the lease; and • The index rate being adjusted; and • The "Purchase Option" at lease maturity ($1, or fair market value); and • The available term in months of lease(s) available. • Leasing company information such as: o The name and address of the leasing company; and o Any ownership, common ownership, or control between the Proposer and the Leasing Company. N. SALES TAX 4.47 Sales and other taxes, where applicable, shall not be included in the prices quoted. Vendor will charge state and local sales and other taxes on items for which a valid tax exemption certification has not been provided. Each NJPA Member is responsible for providing verification of tax exempt status to 20 Revision 1 -7 -13 EXHIBIT 2 Vendor. When ordering, if applicable, NJPA Members must indicate that they are tax exempt entities. Except as set forth herein, no party shall be responsible for taxes imposed on another party as a result of or arising from the transactions contemplated by a Contract resulting from this RFP. O. SHIPPING AND SHIPPING PROGRAM 4.48 Shipping program for material only proposals, or sections of proposals, must be defined as a part of the cost of product/equipment. If shipping is charged to NJPA or NJPA Member, only the actual cost of delivery may be added to an invoice. Shipping charges calculated as a percentage of the product price may not be used, unless such charges are lower than actual delivery charges. No COD orders will be accepted. It is desired that delivery be made within ninety -days (90) of receipt of the Purchase Order. See "The Total Cost of Acquisition" for the equipment /products and related services. 4.49 Any shipping cost charged to NJPA or NJPA Members will be considered to be part of "proposal pricing." 4.50 Additional costs for expedited deliveries will be at the additional shipping or handling expense to the NJPA Member. 4.51 Selection of a carrier for shipment will be the option of the party paying for said shipping. Use of another carrier will be at the expense of the requester. 4.52 Proposers must define their shipping programs for Alaska and Hawaii and any location not served by conventional shipping services. Over -size and over - weight items and shipments may be subject to custom freight programs. 4.53 Proposals containing restocking fees are less advantageous than those not containing re- stocking fees. That being said, certain industries cannot avoid restocking fees. Certain industries providing made to order product /equipment may not allow returns. With regard to returns and restocking fees, Proposers will be evaluated based on the relative flexibility extended to NJPA and NJPA Members relating to those subjects. Where used, restocking fees in excess of 15% will be considered excessive. Restocking fees may be waived, at the option of the Proposer /Vendor. Indicate all shipping and re- stocking fees in price program. 4.54 Proposer agrees shipping errors will be at the expense of the Vendor. For example, if a Vendor ships a product that was not ordered by the member, it is the responsibility of the Vendor to pay for return mail or shipment at the convenience of the member. 4.55 Unless specifically stated otherwise in the "Shipping Program" of a Proposer's Response, all prices quoted must be F.O.B. destination with the freight prepaid by the Vendor. Delivery effectiveness is very important aspect of this Contract. If completed deliveries are not made at the time agreed, NJPA or NJPA Member reserves the right to cancel and purchase elsewhere and hold Vendor accountable. If delivery dates cannot be met, Vendor agrees to advise NJPA or NJPA Member of the earliest possible shipping date for acceptance by NJPA or NJPA Member. 4.56 Delivered products /equipment must be properly packaged. Damaged products /equipment will not be accepted, or if the damage is not readily apparent at the time of delivery, the products /equipment product /equipment shall be returned at no cost to NJPA or NJPA Member. NJPA and NJPA Members reserve the right to inspect the product/equipment at a reasonable time subsequent to delivery where circumstances or conditions prevent effective inspection of the product/equipment at the time of delivery. 4.57 Vendor shall deliver Contract conforming products /equipment in each shipment and may not substitute products /equipment without approval from NJPA Member. 21 Revision 1 -7 -13 EXHIBIT 2 4.58 NJPA reserves the right to declare a breach of Contract if the Vendor intentionally delivers substandard or inferior products /equipment which are not under Contract and described in its paper or electronic price lists or sourced upon request to any member under this Contract. In the event of the delivery of a non- conforming product /equipment, NJPA Member will immediately notify Vendor and the Vendor will replace non - conforming product /equipment with conforming product /equipment acceptable to the NJPA member. 4.59 Throughout the term of the Contract, Proposer agrees to pay for return shipment on product /equipment that arrives in a defective or inoperable condition. Proposer must arrange for the return shipment of damaged product /equipment. 4.60 Unless contrary to other parts of this solicitation, if the product/equipment or the tender of delivery fail in any respect to conform to this Contract, the purchasing member may: 1) reject the whole, 2) accept the whole or 3) accept any commercial unit or units and reject the rest. P. NORMAL WORKING HOURS 4.61 Prices quoted are for equipment/products and services delivered during normal business hours. Normal Business hours will be as specifically defined herein, defined through industry standards OR defined through statement contained in the purchase /work order issued pursuant to a Contract resulting from this RFP. 5. MARKETING PLAN 5_1 Internal Marketing Plan: If you are awarded a contract based on this solicitation, your sales force will be the primary source of the contract success. Your sales force needs to be aware that the value of the contract includes: • The use of the NJPA Contract will save their customer (NJPA's Member) the time and effort of bringing a new individual Request For Proposal (RFP). • The use of the NJPA Contract will save you and your sales force the time and effort of responding to individual Request For Proposals (RFPs). • The use of the NJPA Contract will offer NJPA members the opportunity to have the ability to choose your company's contracted product /equipment and related services. An award of Contract resulting from this RFP is an opportunity for the awarded Vendor to pursue commerce with, and deliver valued contracted products /equipment and related service solutions to NJPA and NJPA Members nationwide. Your internal marketing plan should serve to: 5.1.1 Identify the appropriate levels of sales management whom will need to understand the value of, and the internal procedures necessary to deliver your Contract solution to NJPA and NJPA Members through your marketing and sales efforts. 5.1.2 Identify, in general, your national footprint and dedicated feet -on- the - street sales force that will be carrying this Contract message and opportunity in the field to NJPA Members. Outline the sale force network in terms of numbers and geographic location and distribution of the product/equipment and related services. Service may be independent of the sales of the product/ equipment. Demonstrate fully the sales and service capabilities of your company through your response. 5.1.2.1 Identify whether your sales force are employees or independent contractors. Identify whether your dealers are company owned or independently owned. 5.1.3 Identify your plan for delivering training to these individuals. 22 Revision 1 -7 -13 EXHIBIT 2 5.1.3.1 Will you have your sales force or dealer network gathered at national or regional events in the near future? Does you sales force or dealer network have the ability to participate in sales training webinar or webcast events? 5.1.3.2 NJPA is prepared to provide our personnel for sales training and /or on a webinar or webcast or other methodologies to effectively reach the appropriate groups within your sales management, dealer network and sales force. 5.1.4 Sales Management Contract Training. 5.1.4.1 NJPA will commit to providing contract sales training regarding all aspects of communicating the value of the Contract itself, the authority of NJPA to offer the Contract to its Members, the value the Contract delivers to NJPA Members, the scope of NJPA Membership, and the authority of NJPA Members to utilize NJPA procurement contracts. 5.1.4.2 Your Sales Management will be needed to provide training regarding employee compensation and internal procedures when delivering the Contract opportunity, and how this Contract purchasing opportunity relates with other such opportunities available. 5_2 Success in marketing is dependent upon 1) the delivery of value as defined in section 1.4, 2) the delivery of knowledge of the contract and its proper use and utility, and 3) the delivery of the contracted products /equipment and related services and the sales reward which creates a personal commitment to the contract. NJPA desires a marketing plan that: 5.2.1 identifies the value to a member of a delivered a competitively proposed national cooperative procurement contract that reduces the need by both the NJPA Member and the Vendor /Vendor's sales staff of the responsibility to facilitate and responding to multiple and similar individual RFP's; 5.2.2 identifies the appropriate Vendor personnel from both management and sales staff who will be trained on the sales and marketing methods, strategy, use and utility of such a contract and a general schedule of when and how those individuals will be trained; and 5.2.3 identifies in general how the reward system for the marketing, delivery, and service chain of the Vendor will be affected by the implementation of the proposed Contract and how that will be proposed to those individuals in terms of the value created for them and their departments in 5. 1.1 above. 5_3 External Marketing Plan: NJPA is seeking the ability to serve all our current and potential members nationwide. The Proposer must demonstrate the ability to both market and service their products /equipment and related services to NJPA current and potential members nationwide. As a part of your Marketing Plan, demonstrate your sales and service network and the capability to staff, communicate and offer the contract opportunity while demonstrating your commitment to serving NJPA and NJPA Members nationwide through the awarded contract. 5_4 The Proposer must exhibit the willingness and ability to develop marketing materials and participate in marketing venues such as: 5.4.1 Printed Marketing Materials. Proposer will initially produce and thereafter maintain full color print advertisements in camera ready electronic format including company logos, identifying the Vendor, the Vendor's general utility for NJPA and NJPA Members, and contact information to be used by NJPA and NJPA Members in a full page, half page, and quarter page formats. These advertisements will be used in the NJPA directory and other marketing publications. 23 Revision 1 -7 -13 EXHIBIT 2 5.4.2 Contract announcements and advertisements. Proposer will identify a marketing plan identifying their anticipated contract announcements, advertisements in industry periodicals, or other direct or indirect marketing activities. 5.4.3 Proposer's Website. Proposer will identify how an Awarded Contract will be displayed on the Proposer's website. An on -line shopping experience for NJPA and NJPA Members is desired when applicable and will be viewed as a value -added attribute to a Proposer's Response. 5.4.4 Trade Shows. Proposer will outline their proposed involvement in the promotion of a Contract resulting from this RFP through applicable trade shows. Proposers are encouraged to identify tradeshows and other appropriate venues for the promotion of any such Contract. Proposers are encouraged to consider participation with NJPA at NJPA embraced national trade shows. Examples of such could include: NAEP National Association of Education Procurement I -ASBO International Association of School Business Officials NIGP National Institute of Government Purchasing 5_5 Proposer must also work in cooperation with NJPA to develop a marketing strategy and provide avenues to equally market and drive sales through the Contract and program to all NJPA Members nationally. Awarded Vendor agrees to actively market in cooperation with NJPA all contracted equipment /products and services to current and potential NJPA Members. NJPA reserves the right to deem a Proposer non - responsive or to waive an award based on an unacceptable marketing plan. 5_6 As a part of this response, submit a complete Marketing Plan on how you would help NJPA roll out this program to current and potential NJPA Members. NJPA requires the Awarded Vendors actively promote the Contract in cooperation with the NJPA. Proposers are advised to consider marketing efforts in the areas of 1) Website Link from Proposer's website to NJPA's website, 2) Attendance and participation with a display booth at national and regional trade shows and meetings when the event is applicable to the Proposer's customer vertical, and 3) Sales team and sales training programs involving both Proposer's sales management and NJPA staff. 5_7 Facilitating NJPA Membership: Proposer should express their commitment to develop a process to establish membership status of current and potential agencies with NJPA as a part of the sales or customer communication process. 5.7.1 Membership information: Proposer should further express their commitment to capturing sufficient member information as is deemed necessary by NJPA to appropriately facilitate membership. 6. PROPOSAL OPENING PROCEDURE 6.1 Sealed and properly identified Proposer's Responses for this RFP entitled "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" will be received by Gregg Meierhofer, Manager of Bids and Contracts, at NJPA Offices, 202 12th Street NE, Staples, MN 56479 until the deadline for receipt of, and proposal opening identified on page one of this RFP. We document the receipt by using an atomic clock; an NJPA employee electronically time and date stamps all Proposals immediately upon receipt. The NJPA Director of Contracts and Marketing, or Representative from the NJPA Proposal Evaluation Committee, will then read the Proposer's names aloud. A summary of the responses to this RFP will be made available for public inspection in the NJPA office in Staples, MN. A letter or e-mail request is required to receive a complete RFP package. Send or communicate all requests to the attention of Gregg Meierhofer 202 12th Street Northeast Staples, MN 56479 or RFP @njpacoop.org to receive a complete copy of this RFP. Method of delivery needs to be 24 Revision 1 -7 -13 EXHIBIT 2 indicated in the request; an email address is required for electronic transmission. Oral, facsimile, telephone or telegraphic Proposal Submissions or requests for this RFP are invalid and will not receive consideration. All Proposal Responses must be submitted in a sealed package. The outside of the package shall plainly identify "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" To avoid premature opening, it is the responsibility of the Proposer to label the Proposal Response properly. 7. EVALUATION OF PROPOSALS A. PROPOSAL EVALUATION PROCESS 7_1 Overall Evaluation (FORM G) - The NJPA Proposal Evaluation Committee will evaluate proposals received based on a 1,000 point evaluation system. The Committee will establish both the evaluation criteria and designate the relative importance of those criteria by assigning possible scores for each category. 7_2 NJPA will use a 1,000 Point Evaluation System to help determine the best overall Proposer(s) selection. Bonus points may be available for specific proposal characteristics identified such as "Green Product Certifications." 7.2.1. Bonus Evaluation Points- Bonus evaluation points may be awarded by the NJPA Proposal Evaluation Committee based on criteria identified as being both "optional" and "having additional value." 7_3 NJPA shall use a final overall scoring system to include consideration for best price and cost evaluation. The total possible score is 1,000 points. NJPA reserves the right to assign any number of point awards or penalties it considers warranted if a Proposer stipulates exceptions, exclusions, or limitations of liabilities. 7.4 Responses will be evaluated first for responsiveness and thereafter for content. The NJPA Board of Directors will make awards to the selected Proposer(s) based on the recommendations of the Proposal Evaluation Committee. 7_5 To qualify for the final evaluation, a Proposer must have been deemed responsive as a result of the criteria set forth under "Proposer Responsiveness." 7_6 NJPA uses a variety of evaluation methodologies, including but not limited to a cost comparison of specific and deemed to be like equipment /products. These processes establish final points for submitted price levels. 7_7 The procurement activities of the NJPA Proposal Evaluation Committee are limited to document preparation, answering Proposer questions, advertising the solicitation, distribution of this RFP upon request, conducting an evaluation and making recommendation for possible approval to NJPA Board of Directors. B. PROPOSER RESPONSIVENESS 7_8 Proposer's Response received after the deadline for submission will be invalid and returned to the Potential Proposer unopened. 7_9 An essential part of the proposal evaluation process is an evaluation to qualify the Proposer being considered. All proposals must contain answers or responses to the information requested in the proposal forms. Any Proposer failing to provide the required documentation may be considered non - responsive. 7.10 Deviations or exceptions stipulated in Proposer's Response may result in the proposal being classified as non - responsive. 25 Revision 1 -7 -13 EXHIBIT 2 7.11 To qualify for evaluation, a proposal must have been submitted on time and materially satisfy all mandatory requirements identified in this document. A proposal must reasonably and substantially conform to all the terms and conditions in the solicitation to be considered responsive. 7.12 The Proposal Evaluation Committee shall utilize the following criteria to evaluate all proposals received. Items 1 -4 constitute the test for "Level One Responsiveness" and are determined on the proposal opening date. "Level 2" responsiveness is determined through the evaluation of the remaining items listed under Proposal Evaluation Criteria. These items are not arranged in order of importance and each item may encompass multiple areas of information requested. 1. The proposal response is received prior to the deadline for submission. 2. The proposal package was properly addressed and identified as a sealed proposal with a specific opening date and time. 3. The proposal response contains the required certificate of liability insurance. 4. The proposal response contains original signatures on all documents requiring such. C. PROPOSAL EVALUATION CRITERIA 7.13 Reduction of Evaluation Points. The following items will be sufficient cause to reduce evaluation points. 7.13.1 If a manufacturer or supplier chooses not to produce or supply a full selection and representation of product /equipment and related services it has available which fall within the scope of this RFP, such action will be considered sufficient cause to reduce evaluation points. 7.14 Evaluation Criteria 7.15 Evaluation of each Proposer's Response will take into consideration as a minimum response but not necessarily limited to the following: 1. Adherence to all requirements of this RFP as defined by industry standards. 2. Prior knowledge of and experience with a Proposer in terms of past performance and market place success. 3. Capability of meeting or exceeding current and future needs or requirements of NJPA and NJPA Members. 4. Evaluation of Proposer's ability to market to and provide service to all NJPA Members nationally. 5. Financial condition of the Proposer. 6. Nature and extent of company data furnished in Proposer's Response. 7. Quality of products, equipment, and services offered including value added related services. 8. History of member service to NJPA type customers. 9. Overall ability to perform sales, solutions and contract support as submitted. 10. Ability to meet service and warranty needs. 11. History of meeting shipping and delivery expectations of contracted products/ services. 12. Technology advancements and related provisions. 13. Ability to market and promote the Contract within current business practices. 14. Willingness to develop and enter into NJPA Contract and business relations. 15. Favorable bond rating and applicable industry standard licensing ability. 16. Past market place successes and brand recognition. 17. Demonstrated warranty and product /service responsibility. 18. Possesses qualifications as a responding Proposer that meets or exceeds those set within the solicitation. 19. Information from government and education references and past performance information including past agency approval. 20. Demonstrates that they offer the most current industry standard equipment /products and related 26 Revision 1 -7 -13 EXHIBIT 2 services and /or services. 21. Demonstrates financial stability as a company and a favorable banking line of credit. 22. Demonstrates their equipment/products and related services proposed meet and /or exceed industry standards accepted by educational or governmental agencies nationally. 23. Demonstrates market place success and their past performance exhibits an acceptable reputation nationally within the government and education market place. 24. Demonstrates that the company possesses the background, knowledge, capacity, and ability to sell, deliver, and support equipment/products and related services offered to government and education and related agencies. 25. Response's conformance to terms and conditions as described in the solicitation, including documentation. 26. Has provided documentation defining, outlining, and describing their concept of a national marketing program they will be implementing to facilitate and coordinate the cooperative activities required by an awarded NJPA Contract. 27. Has provided all of the required and applicable documentation required i.e. insurance certificates, licenses, and /or registration certificates required to do business nationally. 28. Line -Item Pricing, or acceptable pricing model in approved excel format, listing of all of the proposed equipment /products and related services and warranty provisions with their associated units of costs. 29. Hot List Pricing equipment /products and related services in a Line -Item Pricing format (when applicable). 30. Contract Pricing submitted as requested to include selection of products /equipment and related services in a Line -Item Pricing and /or Percentage Discount from a published gov /ed price list or Catalog. D. OTHER CONSIDERATION 7.16 Consideration will be given in the award based on the completion and degree of information provided regarding available products /equipment, and accessories, and related services as well as, applicable parts of the Proposer Information and Questionnaire. 7.17 The Proposer is required to have extensive knowledge and at least three (3) years of experience with the related activities surrounding the selling of the product /equipment, related services or related products /equipment offered. 7.18 NJPA reserves the right to accept or reject newly formed companies solely based on information provided in the proposal and /or its own investigation of the company. 7.19 The fact a manufacturer or supplier chooses not to produce or provide equipment products or services to meet the intent and scope of this RFP will not be considered sufficient cause to adjudge this RFP as restrictive. 7.20 Consideration will be given in the proposal evaluation based upon the selection, variety, technological advances, and demonstrated quality of products submitted, technological advances, and pricing. A positive review will reflect the ability of the Proposer to communicate the value of these factors and to demonstrate how the depth and breadth of their product and service offerings provide NJPA and NJPA Members comfort and assurance understanding that the proposer accepts the sole source of responsibility of the response to the scope of this RFP. 7.21 Consideration will also be given to proposals demonstrating technological advances, provide increased efficiencies, expanded service and other related improvements beyond today's NJPA member's needs and applicable standards. 7.22 Strong consideration will be given to a Proposer's past performance, distribution model, and the 27 Revision 1 -7 -13 EXHIBIT 2 demonstration their ability to effectively market and service NJPA Membership nationally. 7.23 Strong consideration will be given to the best price as it relates to the quality of the product and service. However, price is ultimately only one of the factors taken into consideration in the evaluation and award. 7.24 The Proposer's ability to follow the proposal preparation instructions set forth in this solicitation will also be considered to be an indicator of the Proposer's ability to follow other future instructions should they receive an award as a result of this solicitation. Any Contract between NJPA and a Proposer requires the delivery of information and data. The quality of organization and writing reflected in the proposal will be considered an indication of the quality of organization and writing which would be prevalent if a Contract was awarded. As a result, the proposal will be evaluated as a sample of data submission. 7.25 Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available). The Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) are requested and reviewed to get a general feel for the size, strength, and probable scope of the Proposer. 7.26 NJPA reserves the right to reject the Proposer's Response of the apparent successful Proposer where the available evidence or information does not exhibit the ability or intent to satisfy NJPA that the potential Vendor is unable to properly carry out the terms of this RFP and potential Contract. 7.27 NJPA shall reserve the right to reject any or all proposals. NJPA also reserves the right to reject a proposal not accompanied by required certificate of insurance, other data required by this RFP, or if a Proposer's Response is incomplete or irregular. The NJPA shall reject all proposals where there has been proven or suspicion of collusion among the Proposers. E. COST COMPARISON 7.28 NJPA reserves the right to use this process in the event the Proposal Evaluation Committee feels it is necessary to make a final determination. 7.29 This process will be based on a point system with points being awarded for being low to high Proposer for each cost evaluation item selected. A "Market Basket" of identical (or substantially similar) equipment /products and related services may be selected by the NJPA Evaluation Committee and the unit cost will be used as a basis for determining the point value. The "Market Basket" will be selected by NJPA from all product categories as determined appropriate by NJPA. The low priced Proposer will receive the full point value and all other Proposers will receive points as follows: Lowest price Proposal = 5 (where there are five proposers), and inferior proposals = 4, 3, 2, 1 points each. The Total Score for each proposer will be the sum of all points earned. The result of this process shall not be the sole determination for award. F. PRODUCT TESTING 7.30 NJPA reserves the right to request and test equipment/products and related services from the apparent successful Proposer. Prior to the award of the Contract, the apparent successful Proposer, if requested by NJPA, shall furnish current information and data regarding the Proposer's resources, personnel, and organization within three (3) days. G. PAST PERFORMANCE INFORMATION 7.31 Past performance information is relevant information regarding a Proposer's actions under previously awarded contracts to schools, local, state, and governmental agencies and non - profit agencies. It includes the Proposer's record of conforming to specifications and standards of good workmanship. The Proposer's history for reasonable and cooperative behavior and commitment to member satisfaction 28 Revision 1 -7 -13 EXHIBIT 2 shall be under evaluation. Ultimately, Past Performance Information can be defined as the Proposer's businesslike concern for the interests of the NJPA Member. H. WAIVER OF FORMALITIES 7.32 NJPA reserves the right to waive any minor formalities or irregularities in any proposal and to accept proposals, which, in its discretion and according to the law, may be in the best interest of its members. 8. POST AWARD OPERATING ISSUES A. SUBSEQUENT AGREEMENTS 8_1 Purchase Order- Purchase Orders for product/equipment and related services may be executed between NJPA or NJPA Members (Purchaser) and awarded Vendor(s) or Vendor's sub - contractors pursuant to this invitation and any resulting Contract. NJPA Members are instructed to identify on the face of such Purchase orders that "This purchase order is issued pursuant to NJPA procurement contract #XXXXXX." A Purchase Order is an offer to purchase product/equipment and related services at specified prices by NJPA or NJPA Members pursuant to a Contract resulting from this RFP. Purchase Order flow and procedure will be developed jointly between NJPA and an Awarded Vendor after an award is made. 8_2 Governing Law- Purchase Orders, as identified above, shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. Each and every provision of law and clause required by law to be included in the Purchase Order shall be read and enforced as though it were included. If through mistake or otherwise any such provision is not included, or is not currently included, then upon application of either part the Contract shall be physically amended to make such inclusion or correction. The venue for any litigation arising out of disputes related to Purchase Order(s) shall be a court of competent jurisdiction to the Purchaser. 8_3 Additional Terms and Conditions- Additional terms and conditions to a Purchase Order may be proposed by NJPA, NJPA Members, or Vendors. Acceptance of these additional terms and conditions is OPTIONAL to all parties to the Purchase Order. The purpose of these additional terms and conditions is to, among other things; formally introduce job or industry specific requirements of law such as prevailing wage legislation. Additional terms and conditions can include specific local policy requirements and standard business practices of the issuing Member. Said additional terms and conditions shall not interfere with the general purpose, intent or currently established terms and conditions contain in this RFP document. 8_4 Specialized Service Requirements- In the event service requirements or specialized performance requirements such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements not addressed in the Contract resulting from this RFP, NJPA Member and Vendor may enter into a separate, standalone agreement, apart from a Contract resulting from this RFP. Any proposed service requirements or specialized performance requirements require pre- approval by Vendor. Any separate agreement developed to address these specialized service or performance requirements is exclusively between the NJPA Member and Vendor. NJPA, its agents, Members and employees shall not be made party to any claim for breach of such agreement. Product sourcing is not considered a service. NJPA Members will need to conduct procurements for any specialized services not identified as a part or within the scope of the awarded Contract. 8_5 Performance Bond- At the request of the member, a Vendor will provide all performance bonds typically and customarily required in their industry. These bonds will be issued pursuant to the requirements of Purchase Orders for product /equipment and related services. If a purchase order is cancelled for lack of a required performance bond by the member agency, it shall be the recommendation of NJPA that the current pending Purchase Order be canceled. Each member has the final decision on 29 Revision 1 -7 -13 EXHIBIT 2 Purchase Order continuation. ANY PERFORMANCE BONDING REQUIRED BY THE MEMBER OR CUSTOMER STATE LAWS OR LOCAL POLICY IS TO BE MUTUALLY AGREED UPON AND SECURED BETWEEN THE VENDOR AND THE CUSTOMER /MEMBER. B. NJPA MEMBER SIGN -UP PROCEDURE 8_6 Awarded Vendors will be responsible for familiarizing their sales and service forces with the various forms of NJPA Membership documentation and shall encourage and assist potential Members in establishing Membership with NJPA. NJPA membership is at no cost, obligation or liability to the member or the vendor. C. REPORTING OF SALE ACTIVITY 8_7 A report of the total gross dollar volume of all equipment/products and related services purchased by NJPA Members as it applies to this RFP and Contract will be provided quarterly to NJPA. The form and content of this reporting will be developed by NJPA in cooperation with the Vendor to include, but not limited to, name and address of purchasing agency, amount of purchase, and a description of the items purchased. 8.7.1 Zero sales reports: Awarded Vendors are responsible for providing a quarterly sales report of contract sales EVERY QUARTER regardless of the existence or amount of sales. D. AUDITS 8_8 During the Term, however no more than once per calendar year, Vendor(s) may be required to make available to NJPA at the Vendor's corporate offices (during normal business hours) the invoice reports and /or invoice documents from Vendor pertaining to all invoices sent by Vendor and all payments made by NJPA members for all equipment /products and related services purchased under the awarded Contract. NJPA must provide written notice of exercise of this requirement with no less than fourteen (14) business days' notice. NJPA may employ an independent auditor or NJPA may choose to conduct such audit on its own behalf. Vendor shall have the right to approve the independent auditor, which approval shall not be unreasonably withheld. Upon approval and after the auditor has executed an appropriate confidentiality agreement, Vendor will permit the auditor to review the relevant Vendor documents. NJPA shall be responsible for paying the auditor's fees. The parties will make every reasonable effort to fairly and equitably resolve discrepancies to the satisfaction of both parties. Vendor agrees that the NJPA may audit their records with a reasonable notice to establish total compliance and to verify prices charged hereunder of the Contract are being met. Vendor agrees to provide verifiable documentation and tracking in a timely manner. E. HUB PARTNER 8_9 Hub Partner: Where applicable, NJPA Members may, from time to time, request to be served in some way through a "Hub Partner" for the purposes of complying with a Law, Regulation, or Rule to which that individual NJPA Member deems to be applicable in their jurisdiction. Hub Partners may bring value to the proposed transactions through consultancy, Disadvantaged Business Entity Credits, or other considerations. 8.10 Hub Partner Fees: Fees, costs, or expenses from this Hub Partner levied upon a transaction resulting from this contract, shall be payable by the NJPA Member provide that: 8.10.1 The fees, costs, or expenses levied by the Hub Vendor must be clearly itemized in the transaction; and 8.10.2 To the extent that the Vendor stands in the chain of title during a transaction resulting from 30 Revision 1 -7 -13 EXHIBIT 2 this RFP, the documentation shall be documented to show it is "Executed for the Benefit of [NJPA Member Name]." F. TRADE -INS 8.11 Where Appropriate, the value in US Dollars for Trade -ins will be negotiated between NJPA or an NJPA Member, and an Awarded Vendor. That identified "Trade -In" value shall be credited in full against the NJPA purchase price identified in a purchase order issued pursuant to any Awarded NJPA procurement contract. The full value of the trade -in will be consideration to that purchase order. G. OUT OF STOCK NOTIFICATION 8.12 Vendor shall immediately notify NJPA members upon receipt of order(s) when an out -of -stock occurs. Vendor shall inform the NJPA member regarding the anticipated date of availability for the out - of -stock item(s), and may suggest equivalent substitute(s). • The ordering organization shall have the option of accepting the suggested equivalent substitute, or canceling the item from the order. • Under no circumstance is Proposer permitted to make unauthorized substitutions. • Unfilled or substituted item(s) shall be indicated on the packing list. H. TERMINATION OF CONTRACT RESULTING FROM THIS RFP 8.13 NJPA reserves the right to cancel the whole or any part of a resulting Contract due to failure by the Vendor to carry out any obligation, term or condition as described in the below procedure. Prior to any termination for cause, the NJPA will provide written notice to the Vendor, opportunity to respond and opportunity to cure according to the steps in the procedure in this Cancellation Section. Some examples of material breach are the following: • The Vendor provides products /equipment or related services that does not meet reasonable quality standards and is not remedied under the warranty; • The Vendor fails to ship the products /equipment or related services or provide the delivery and services within a reasonable amount of time; • NJPA has reason to believe the Vendor will not or cannot perform to the requirements or expectations of the Contract and issues a request for assurance as described herein and Vendor fails to respond; • The Vendor fails to observe any of the material terms and conditions of the Contract; • The Vendor fails to follow the established procedure for purchase orders, invoices and /or receipt of funds as established by the NJPA and the Vendor in the Contract. • The Vendor fails to report quarterly sales ; • The Vendor fails to actively market this Contract within the guidelines provided in this RFP and the expectations of NJPA defined in the NJPA Contract Launch. • In the event the contract has no measurable and defining value or benefit to NJPA or the NJPA member. 8.14 Each party shall follow the below procedure if the Contract is to be terminated for violations or non - performance issues: Step 1: Issue a warning letter outlining the violations and /or non - performance and state the length of time (10 days) to provide a response and correct the problem(s) if reasonably possible in such time frame. Step 2: Issue a letter of intent to cancel Contract, if the problem(s) is not resolved within fifty (50) days. Step 3: Issue letter to cancel Contract for cause. 31 Revision 1 -7 -13 EXHIBIT 2 8.15 Upon receipt of the written notice of concern, the Vendor shall have ten (10) business days to provide a satisfactory response to the NJPA. Failure on the part of the Vendor to reasonably address all issues of concern may result in Contract cancellation pursuant to this Section. 8.16 Any termination shall have no effect on purchases that are in progress at the time the cancellation is received by the NJPA. The NJPA reserves the right to cancel the Contract immediately for convenience, without penalty or recourse, in the event the Vendor is not responsive concerning the remedy, the performance, or the violation issue within the time frame, completely or in part. 8.17 NJPA reserves the right to cancel or suspend the use of any Contract resulting from this RFP if the Vendor files for bankruptcy protection or is acquired by an independent third party. Prior to commencing services under this Contract, the Proposer /Vendor must furnish NJPA certification from insurer(s) proving level of coverage usual and customary to the specific industry. The coverage is to be maintained in full effect during the Contract period. Vendor must be willing to provide, upon request, certification of insurance to any NJPA member or member using this Contract. 8.18 Either party may execute Contract termination without cause with a required 60 -day written notice of termination. Termination of Contract shall not relieve either party of financial, product or service obligations incurred or accrued prior to termination. 8.19 NJPA may cancel any Contract resulting from this solicitation without any further obligation if any NJPA employee significantly involved in initiating, negotiating, securing, drafting or creating the Contract on behalf of the NJPA is found to be in collusion with any Proposer to this RFP for their personal gain. Such cancellation shall be effective upon written notice from the NJPA or a later date if so designated in the notice given. A terminated Contract shall not relieve either party of financial, product or service obligations due to participating member or NJPA. 8.20 Events of Automatic termination to include; Vendor's or NJPA's voluntary or involuntary bankruptcy or insolvency; Vendor's failure to remedy a material breach of a Contract resulting from this RFP within sixty (60) days of receipt of notice from NJPA specifying in reasonable detail the nature of such breach; and /or, Receipt of written information from any authorized agency finding activities of Vendors engaged in pursuant to a Contract resulting from this RFP to be in violation of the law. 9. GENERAL TERMS AND CONDITIONS A. ADVERTISEMENT OF RFP 9_1 As a policy, NJPA shall advertise this solicitation 1) for two consecutive weeks in both the hard copy print and on -line editions of the MINNEAPOLIS STAR TRIBUNE, 2) for two consecutive weeks in both the hard copy print and on -line editions of Oregon's Daily Journal of Commerce, 3) it shall be placed on a national wire service and website by the MINNEAPOLIS STAR TRIBUNE, 4) it shall be posted on NJPA's website, 5) it shall be posted to the "Noticetobidders.com" website, and 6) it shall be posted to other third -party websites deemed appropriate by NJPA. Other third party advertisers may include Onvia and Bidsync. NJPA also notifies and provides solicitation documentation to each State level procurement departments for possible re- posting of the solicitation within their systems and at their option for future use and to meet specific state requirements. B. ADVERTISING OF A CONTRACT RESULTING FROM THIS RFP 9_2 Proposer /Vendor shall not advertise or publish information concerning this Contract prior to the 32 Revision 1 -7 -13 EXHIBIT 2 award being announced by the NJPA. Once the award is made, a Vendor is expected to advertise the awarded Contract to both current and potential NJPA Members. C. APPLICABLE LAW 9_3 NJPA Compliance with Minnesota Procurement Law: Contracts awarded through NJPA are intended to meet the procurement laws of all states and NJPA will exhaust all avenues to comply with each unique state law or requirement whenever possible. It is the responsibility of each participating NJPA member to ensure to their satisfaction that NJPA contracting process falls within these laws and applicable laws are satisfied. An individual NJPA member using these contracts is deemed by their own accord to be in compliance with their own requirements and procurement regulations. 9_4 Governing Law with respect to delivery and acceptance: All applicable portions of the Minnesota Uniform Commercial Code, all other applicable Minnesota laws, and the applicable laws and rules of delivery and inspection of the Federal Acquisition Regulations (FAR) laws shall govern NJPA contracts resulting from this solicitation. 9_5 Jurisdiction: Any claims pertaining to this RFP and any resulting Contract that develop between NJPA and any other party must be brought forth only in courts in Todd County in the State of Minnesota. 9.5.1 Purchase Orders issued pursuant to a contract resulting from this solicitation shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. 9_6 Vendor Compliance with applicable law: Vendor(s) shall comply with all federal, state, or local laws applicable to or pertaining to the transaction, acquisition, manufacturer, suppliers or the sale of the equipment/products and relating services resulting from this RFP. 9_7 Applicable Laws, whether or not herein contained, shall be included by this reference. It shall be Proposer's /Vendor's responsibility to determine the applicability and requirements of any such laws and to abide by them. 9_8 Indemnity: Each party agrees it will be responsible for its own acts and the result thereof to the extent authorized by law and shall not be responsible for the acts of the other party and the results thereof. NJPA's liability shall be governed by the provisions of the Minnesota Tort Claims Act, Minnesota Statutes, Section §3.736, and other applicable law. 9_9 Prevailing Wage: It shall be the responsibility of the Vendor to comply, when applicable, with prevailing wage legislation in effect in the jurisdiction of the purchaser (NJPA or NJPA Member). It shall be the responsibility of the Vendor to monitor the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of this Contract and adjust wage rates accordingly. 9.10 Patent and Copyright infringement: If an article sold and delivered to NJPA or NJPA Members hereunder shall be protected by any applicable patent or copyright, the Vendor agrees to indemnify and save harmless NJPA and NJPA Members against any and all suits, claims, judgments, and costs instituted or recovered against it by any person whosoever on account of the use or sale of such articles by NJPA or NJPA Members in violation or right under such patent or copyright. D. ASSIGNMENT OF CONTRACT 9.11 No right or interest in this Contract shall be assigned or transferred by the Vendor without prior written permission by the NJPA. No delegation of any duty of the Vendor shall be made without prior written permission of the NJPA. The NJPA shall notify the members within fifteen (15) days of receipt of written notice by the Vendor. After issuance the awarded Contract may be reassigned to a comparable 33 Revision 1 -7 -13 EXHIBIT 2 and acceptable Vendor at the discretion of NJPA. 9.12 If the original Vendor sells or transfers all assets or the entire portion of the assets used to perform this Contract, a successor in interest must guarantee to perform all obligations under this Contract. NJPA reserves the right to reject the acquiring person or entity as a Vendor. A simple change of name agreement will not change the contractual obligations of the Vendor. E. LIST OF PROPOSERS 9.13 NJPA will not maintain or communicate to a list of proposers. All interested proposers must respond to the solicitation as a result of NJPA solicitation advertisements indicated. Because of the wide scope of the potential Members and qualified national Vendors, NJPA has determined this to be the best method of fairly soliciting proposals. F. CAPTIONS, HEADINGS, AND ILLUSTRATIONS 9.14 The captions, illustrations, headings, and subheadings in this solicitation are for convenience and ease of understanding and in no way define or limit the scope or intent of this request. G. DATA PRACTICES 9.15 All materials submitted in response to this RFP will become property of the NJPA and will become public record in accordance with Minnesota Statutes, section 13.591, after the evaluation process is completed. If the Responder submits information in response to this RFP that it believes to be trade secret materials, as defined by the Minnesota Government Data Practices Act, Minnesota Statute § 13.37, the Responder must: • clearly mark all trade secret materials in its response at the time the response is submitted, • include a statement with its response justifying the trade secret designation for each item, and • defend any action seeking release of the materials it believes to be trade secret, and indemnify and hold harmless the NJPA, its agents and employees, from any judgments or damages awarded against the NJPA in favor of the party requesting the materials, and any and all costs connected with that defense. This indemnification survives the NJPA's award of a contract. In submitting a response to this RFP, the Responder agrees that this indemnification survives as long as the trade secret materials are in possession of the NJPA. Proposer can redact additional confidential information at any time after the evaluation process if appropriate legal justification is provided. H. ENTIRE AGREEMENT 9.16 The Contract, as defined herein, shall constitute the entire understanding between the parties to that Contract. 9.17 A Contract resulting from this RFP is formed when the NJPA Board of Directors approves and signs the applicable Contract Award Form document (see Form E). 1. FORCE MAJEURE 9.18 Except for payments of sums due, neither party shall be liable to the other nor deemed in default under this Contract if and to the extent that such party's performance of this Contract is prevented due to force majeure. The term "force majeure" means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence including, but not limited to, the following: acts of 34 Revision 1 -7 -13 EXHIBIT 2 God, acts of the public enemy, war, riots, strikes, mobilization, labor disputes, civil disorders, fire, flood, snow, earthquakes, tornadoes or violent wind, tsunamis, wind shears, squalls, Chinooks, blizzards, hail storms, volcanic eruptions, meteor strikes, famine, sink holes, avalanches, lockouts, injunctions - intervention -acts, terrorist events or failures or refusals to act by government authority and /or other similar occurrences where such party is unable to prevent by exercising reasonable diligence. The force majeure shall be deemed to commence when the party declaring force majeure notifies the other party of the existence of the force majeure and shall be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming performance in accordance with a Contract resulting from this RFP. Force majeure shall not include late deliveries of equipment /products and services caused by congestion at a manufacturer's plant or elsewhere, an oversold condition of the market, inefficiencies, or other similar occurrences. If either party is delayed at any time by force majeure, then the delayed party shall notify the other party of such delay within forty-eight (48) hours. J. GRATUITIES 9.19 NJPA may cancel an awarded Contract by written notice if it is found that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Vendor or any agent or representative of the Vendor, to any employee of the NJPA are deemed to be excessive with a view or demonstrated intent toward securing a contract or with respect to the performance of a pending or awarded Contract. K. HAZARDOUS SUBSTANCES 9.20 Proper and applicable Material Safety Data Sheets (MSDS) that are in full compliance with OSHA's Hazard Communication Standard must be provided by the Vendor to NJPA or NJPA Member at the time of purchase. L. LEGAL REMEDIES 9.21 All claims and controversies between NJPA and Vendor shall be subject to the laws of the State of Minnesota and are to be resolved in Todd County, Minnesota, the county in which NJPA is located and domiciled. M. LICENSES 9.22 Proposer shall maintain a current status on all required federal, state, and local licenses, bonds and permits required for the operation of the business that is anticipated to be conducted with NJPA and NJPA members by the Proposer. 9.23 All responding Proposers must be licensed (where required) and have the authority to sell and distribute offered equipment /products and related services to NJPA and NJPA Members nationally. Documentation of required said licenses and authorities, if applicable, is requested to be included in the proposer's response. N. MATERIAL SUPPLIERS AND SUB - CONTRACTORS 9.24 The awarded Vendor shall be required to supply the names and addresses of sourcing suppliers and sub - contractors as a part of the purchase order when requested by NJPA or the NJPA member. 9.25 Awarded Vendors under this RFP will be the sole source of responsibility for transactions originating that award. The Awarded Vendor is solely responsible for equipment/products and related services and products /equipment and related services provided by third -party sourcing or service providers. 0. NON - WAIVER OF RIGHTS 35 Revision 1 -7 -13 EXHIBIT 2 9.26 No failure of either party to exercise any power given to it hereunder, nor to insistence upon strict compliance by the other party with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof, nor any payment under a Contract resulting from this RFP shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. Failure by NJPA to take action or assert any right hereunder shall not be deemed as waiver of such right. P. PROTESTS OF AWARDS MADE 9.27 Protests shall be filed with the NJPA's Executive Director and shall be resolved in accordance with appropriate Minnesota state statutes. Protests will only be accepted from Proposers. A protest must be in writing and filed with NJPA. A protest of an award or proposed award must be filed within ten (10) days after the public notice or announcement of the award. No protest shall lie for a claim that the selected Proposer is not a responsible Proposer. A protest must include: 1. The name, address and telephone number of the protester; 2. The original signature of the protester or its representative (you must document the authority of the Representative); 3. Identification of the solicitation by RFP number; 4. Identification of the statute or procedure that is alleged to have been violated; 5. A precise statement of the relevant facts; 6. Identification of the issues to be resolved; 7. The aggrieved party's argument and supporting documentation; 8. The aggrieved party's statement of potential financial damages; 9. A protest bond in the name of NJPA and in the amount of 10% of the aggrieved party's statement of potential financial damages. Q. PROVISIONS REQUIRED BY LAW 9.28 Proposer agrees in the performance of a Contract resulting from this RFP, it has complied with or will comply with all applicable statutes, laws, regulations, and orders of the United States and any State thereof. R. RIGHT TO ASSURANCE 9.29 Whenever one party to the awarded Contract has reason to question the other party's intent to perform, he /she may demand a written assurance of this intent. In the event a demand is made and no written assurance is given, the demanding party may treat this failure as an anticipatory repudiation of the Contract provided, however, in order to be effective, any such demand shall be addressed to the authorized signer for the party from whom the assurance is being sought, and sent via U.S. Postal Service, certified mail, return receipt requested or national overnight delivery service with proof of delivery. S. SUSPENSION OR DISBARMENT STATUS 9.30 If within the past five (5) years, any firm, business, person or Proposer responding to NJPA solicitation and submitting a proposal has been lawfully terminated, suspended or precluded from participating in any public procurement activity with a federal, state or local government or education agency the Proposer must include a letter with its response setting forth the name and address of the public procurement unit, the effective date of the suspension or debarment, the duration of the suspension or debarment and the relevant circumstances relating to the suspension or debarment. Any failure to supply such a letter or to disclose pertinent information may result in the cancellation of any Contract. By signing the proposal affidavit, the Proposer certifies that no current suspension or debarment exists. T. AFFIRMATIVE ACTION AND IMMIGRATION STATUS CERTIFICATION 36 Revision 1 -7 -13 EXHIBIT 2 9.31 An Affirmative Action Plan, Certificate of Affirmative Action or other documentation regarding Affirmative Action may be required by certain Members may be required by NJPA' or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. 9.32 Immigration Status Certification may be required by NJPA or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. U. SEVERABILITY 9.32 In the event that any of the terms of a Contract resulting from this RFP are in conflict with any rule, law, statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from an awarded Contract resulting from this RFP, but such invalidity or unenforceability shall not invalidate any of the other terms of an awarded Contract resulting from this RFP. V. RELATIONSHIP OF PARTIES 9.33 No Contract resulting from this RFP shall be considered a contract of employment. The relationship between NJPA and an Awarded Contractor is one of independent contractors each free to exercise judgment and discretion with regard to the conduct of their respective businesses. The parties do not intend the proposed Contract to create, or is to be construed as creating a partnership, joint venture, master - servant, principal— agent, or any other relationship. Except as provided elsewhere in this RFP, neither party may be held liable for acts of omission or commission of the other party and neither party is authorized or has the power to obligate the other party by contract, agreement, warranty, representation or otherwise in any manner whatsoever except as may be expressly provided herein. 10. FORMS [THE REST OF THIS PAGE WAS LEFT INTENTIONALLY BLANK. FORMS BEGIN ON NEXT PAGE] 37 Revision 1 -7 -13 EXHIBIT 2 Form A r�1:11�1� "�� PROPOSER QUESTIONNAIRE- General Business Information (Products, Pricing, Sector Specific, Services, Terms and Warranty are addressed on Form P Proposer Name: Questionnaire completed by: Please provide an answer to all questions below and address all requests made in this RFP. Please use the Microsoft Word /Excel document version of this questionnaire to respond to the questions contained herein. Please provide your answer to each question indented below the question. Please supply any applicable supporting information and documentation you feel appropriate in addition to answers entered to the Word document. All information must be typed, organized, and easily understood by evaluators. Company Information 1) Why did you respond to this RFP? 2) What are your company's expectations in the event of an award? 3) Provide the full legal name, address, tax identifications number, and telephone number for your business. 4) Provide a copy of your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) for your organization. 5) Does your company name match the name identified on your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available)? If no, why not? 6) Provide a brief history of your company that includes your company's core values and business philosophy. 7) Provide profiles and an organizational chart for key management, sales management and marketing executives of your company that will oversee and ensure the successful implementation, execution and operation of a Contract resulting from this RFP. 8) How long has your company been in the "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", industry? 9) Is your organization best described as a manufacturer or a distributor /dealer /re- seller for a manufacturer of the products /equipment and related services being proposed? a) If the Proposer is best described as a re- seller, manufacturer aggregate, or distributor, please provide evidence of your authorization as a dealer /re- seller /manufacturer aggregate for the manufacturer of the products /equipment and related services you are proposing. b) If the Proposer is best described as a manufacturer, please describe your relationship with your sales /service force and /or Dealer Network in delivering the products /equipment and related services proposed. c) Are these individuals your employees, or the employees of a third party? d) If applicable, is the Dealer Network independent or company owned? 10) Please provide your bond rating, and /or a credit reference from your bank. 11) Provide a detailed explanation outlining the licenses and certifications that are both required to be held, and actually held by your organization in pursuit of the commerce and business contemplated by this RFP. 12) Provide a detailed explanation outlining licenses and certifications both required to be held, and actually held, by third parties and sub - contractors to your organization in pursuit of the commerce contemplated by this RFP. If not applicable, please respond with "Not Applicable." 13) Provide all "Suspension or Disbarment" information as defined and required herein. See Section U 9.31. Industry- Marketplace Successes 14) List and document recent industry awards and recognition. 15) Supply three references /testimonials from customers of like status to NJPA Members to include Government and 38 Revision 1 -7 -13 EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT: CXT Restroom and Concession Purchase EXECUTIVE SUMMARY: On September 15, 2015, a Consent Agenda Item was reviewed by Council regarding the consideration of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc., not -to- exceed $757,073). Following consideration, the City Council gave direction to staff to review alternate means and methods of construction and to determine if any local architectural, engineering, and construction firms in the Denton area could supply the Parks and Recreation Department with comparable buildings for a lesser price. BACKGROUND: During the bond election of 2005, the citizens of Denton approved the replacement of the restrooms at North Lakes Park Fields 5 and 6, the restroom at Mack Park's Roberts Field, and the restroom concession at Mack Park, structures which were built in 1979. Parks and Recreation Department staff researched various construction methods, obtained construction pricing from several contractors, and determined that prefabricated concrete restrooms were significantly less expensive than standard restrooms (Attachment 1). Prefabricated restrooms are widely used throughout the Parks and Recreation industry and have become the standard in many state and municipal Parks Departments. This purchase is for the design, engineering, and installation of three (3) of these restroom facilities. The pricing has been competitively bid through a contract facilitated by the National Joint Powers Alliance. In accordance with the procedures of Texas Local Government Code 271.102 (Cooperative Purchasing Participation), the City of Denton, Texas, is authorized to participate in Cooperative Agreements. DISCUSSION: Staff solicited estimates from 10 construction firms, the results of which are summarized below: • BLC Architecture met with staff and concluded that site -built concessions and restrooms could be built for $923,223. Facilities constructed with the design would not be able to be repurposed and moved at a later date, and will cost $168,148 more than the CXT option presented. • Lemco presented several options including site built units for $1,014,000; alternate stucco exterior concrete modular buildings for $724,000; and the specified CXT units for $857,993. The Walcon modular series of buildings were $33,000 cheaper than the CXT model but the stucco exterior construction is less resilient than the 4 -inch EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 pigmented concrete used in the CXT Models specified. Additionally, the CXT units were a total of $100,917 more expensive if purchased through Lemco, not CXT. No design fees are included in the Lemco figures. • Links Construction provided an estimate for site built buildings for $665,488.25. The addition of similar permits and bonding that has already been supplied for the CXT option increases this cost to $677,377.75, have allowed for a total savings of $79,697.25 for three buildings. This option would provide the Parks and Recreation Department three restroom and concession buildings made of CMU block. Repurposing the buildings at a later date would not be an option with this purchase. All design fees are included in this Links bid. Caliber Construction supplied a response that they could build these three buildings for an amount not to exceed the $757,000 quote from CXT with the caveat that the results from borings and geotechnical reports did not require significant amendments to the foundations of any of the buildings. There is no gain with this option as there is no anticipated cost savings and the building could not be repurposed or moved to an alternate location at some point in the future. No design fees are included in the Caliber figures. 0 Schmoldt Construction - No response. 0 Crossland Construction - No response. • BR Construction - No response. • TB Builders - No response. • TCMC INC - No response. • Tyson Construction - No response. CONCLUSION: Following careful consideration of competing estimates and associated alternates, the Parks and Recreation Department is convinced that the best value purchase for construction of the three concrete restrooms remains CXT, courtesy of their quality product, competitive quote, and commitment to produce the 3 concrete restrooms at their Hillsboro, Texas, plant, where they employ local tradesmen for construction and install. The Parks Department will schedule a Work Session Discussion for March 1st, followed by an Action Item, to advance the purchase of the patterned concrete restrooms via CXT for City Council approval of the cooperative purchase agreement, NJPA Contract# 022113 with CXT, Inc., not -to- exceed the amount of $757,073. EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 ATTACHMENT(S): 1) CXT Estimates 2) Lemco Estimates 3) BLC Architecture Memo 4) Links Construction Estimates 5) Caliber Construction Email STAFF CONTACT: Emerson Vorel, Director of Parks and Recreation 940 - 349 -7460; Emerson.Vorel @cityofdenton.com EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016-011 Attachment 4 1 Malibu wfth chase rest rcom/concession building. Standard features Indude sisinulated barnwood texture walls, simulated cedar shake textured roof, interior and exterior lights. vitreous china fixtures In restroorn, three cornpartment staintess steet sink In concession area, roll up concession window, off doaidpd and set up at site, Malibu S 137,000X0 137,000,00 Final Connection to Utifilies S 4.0130= OptiouaC Wall Texture _ 0 Split Face Islock ShuckTrowel r.xpcised Aggregate 5 2,000,00 Optional RON 7oXlW9E_._ — [3 DoURIb S 9010,00 'Front Porch" Style Privacy screen 5 1,500 no Two-Tone Color $cherne s 350,00 Stainless Steel Numbing FiAursis 6 2,650,00 E'lect'ric: Hand Myers 2,100,00 Electronic Flushvdiyes 5 1.850.00 Electvonrc Lavatory Faucets t 960�,00 Ectgy�or Mounted ADA nrloking Fount,sioi 1a 2.700,00 30- gallon Electric Water Heater 75000 Skylight in Flestworn iedchl Qty! 4 S 42500 Marine Grade, Skylight Ir, Aewoarn (each) Cly: 4 S 1,40000 Marine Package for Utra Corrosion Resistarce s 9,000.00 'File floor In ReWoom s 10,70000 Fihdirglhss Entry and Chase Doors and Frarnes S 3,450,00 VandlShWd XT s 10,75000 Timed Efertdc Lock System (dioes not include chase do*6 5 3, 115 00 Exte6or Frostproof Hot# Rib wfth Ams 5 385.00 Sta,nless Steet Lavatory ocon(es$Wn T S SWOO Composite Mop Sink (conces0on) 5 $50,00 Paper Towel Dispenser s WOO Toilet Seat Cover Di�spenser 5 75.00 Sanitary elapkm Disposal s 4660 CXT Wastebasket S 38.00 Point TouCh vp Kit - Single Color $ 4000 Point TourFl-up Isit -Two Tone Color 5 5000 Total Cost of 50#00d Accessories from Accessorles, Price List Estimated One-Way Transportation, Costs to Site iquoie)d Custom Options: i1afriti rjorn Adderiduin Al (5iee Attached) ME FirrImiatedrisonflityporyment onSyear lease $0,01WIO Total Cost oer Unit placed at Job Site, Is 4«000,00 000 000 0,00 2,100,00 1,650.00 9$000 000 750.00 0,00 0,00 0010 0.00 0-00 000 000 000 950,00 850,00 0,00 0,00 0.00 0.00 I A50.00 11,700,U) 143,64100 003'1,91.00 1 This price quote is good for 60 days froirn date lw.lcav, and h; acc iTate I accept khts quote. Please process this order, and complete NJPA Member Number Company Name David tai sera ON cn-Oxivo McKiers, . ...... David (.CXT ou=cxT lood"waria". CXT Sales Representative C.U,torroar. Rog rsa, 6 com, C-U 5 lj,j� WW, e 11 fihali Da t )r EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016-011 EXHIBIT Malibu with chase restroom/concession building. V Standard features Include simulated barnwood texture walls, simulated cedar shake textured roof, Interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink In concession area, roll up concession window, off loaded and set up at site. Malibu 5 137,000.00 137,000,00 Final Connection to utilities $ 4,000.00 0 4,000o0 Optional Wall Texture 0— ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate S 2,00000 0.00 Optional Roof Texture , ❑ Delta Pit) Exposed Aggregate 5 90000 0.00 'Front Porch" Style Privacy Screen 5 1,50000 ❑ 0.00 Two-Tone Color Scheme $ 35000 ❑ 0.00 Stainless Steel Plumbing Fixtures 5 2,650.00 1771 0.00 ElectrIc Hand Dryers $ 2,100.00 1711 2,100o0 Electronic FlushValves S 1,850.00 Q 1,850.00 Electronic Lavatory Faucets $ 950o0 950.00 Exterior Mounted ADA Drinking Fountain S 2,700.00 ❑ 000 30- gallon Electric Water Heater S 760,00 750.00 Skylight In Resticlom (each) Cry: 4 5 425.00 ❑ 0.00 Marine Grade Skylight in Restroom (each) City: 4 $ 1,400.00 ❑ 0,00 Marine Package for Extra Corrosion Resistance $ 9.000,00 ❑ 0.00 Tile Floor in Restfoom $ 10,700,00 ❑ 040 Fiberglass Entry and Chase Doors and Frames S 3,450o0 ❑ 0,00 VandlShleld XT 10,750,00 ❑ 0.00 Timed Electric Lock System (does not include chase door) $ 3,115.00 ❑ 0,00 Exterior Frostproof Hose Rib with Box S 385,00 ❑ 0,00 Stainless Steel Lavatory (concession) $ 950,00 1771 0.00 Composite Mop Sink (concession) $ 850.00 ❑ 0.00 Paper Towel Dispenser $ 85.00 ❑ 0.00 Tol let Seat Cover Dispenser $ MOO ❑ 000 Sanitary Napkin Disposal $ 48.00 ❑ 0,00 CXT Wastebasket $ 38,00 1771 0.00 PaInt'rouch-up Kit - Single Colo( $ 40.00 r_1 0.00 Paint Touch-up Kit -Two Tone Color $ 50.00 ❑ 0.00 Total Cost of Selected Accessories from Accessories Price List: $ 9,650.00 Estimated One-Way Transportation Costs to Site (quote); $ 11,700,00 Custom Cl Items from Addendum A3 (See Attached) $ 99,997.00 Estimated monthly poyment on$ year least $ 5,318.16 Total Cost per Unit Placed art Job Site: ( 258,347,00 Mll an tam) This price quote Is good for 60 days from date below, and is accurate and complete. Dig""' 3""ed "Y Dav,d Rogem DN: cn=13avai Rol David o=CXT Irloorporated, 0utCX7IM00rP0Mt9l CXT Sales Represen �fvp Roger0.0ji-orogaraGII ser,rom.cmUS 41 I accept this quote. Please process this order. N IPA Member Number Company Name Customer t �,\ A UJ All gxto Date EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016-011 EXHIBITA Malibu with chase rest room/concession building. Standard features include simulated barnwood it texture walls, simulated cedar shake textured roof, interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off ora loaded and set tip at site. Makbu s 1137,4111f C* 137,000,00 Noel Connection to Utiflues 5 4,000,00 Upilonal WaP Texture ... 17711 Split Face Flock Struck Trowe; Exposed Aggregate 5 2J00(1,00 Optional Ro<)( Texture -om, ED Deltaffib ExposeclAggregate S .00 'Front Porch' Style Privacy Screen S 1,500-00 Two-Tone Colm Scheme 5 350,00 StaWess Steel i'llumlAng Fixtures $ 1650-00 kiectric Hand Dryers S 2, 1 W 00 Electronic Flush Valves 1,650,00 Hecironic Lavatory Faucets S 950,00 ExleelorMounted ADA Drinking Fountain 5 2,700,00 30•qaion EiecWc Water Heater 5 750,00 5k5dight in Ro8troom feach) Oty: 4 S 425SK) Wrine Grede Skylight in Restroom jeachq Oty: 4 S 1,43GrO0 Marine Package for Extra CwQajun Ru5r5tarrce S 91=00 Title Floor in Filstroom S 10,700-00 Fiberglass Entry and Chase Doors and Frame5 S 3,45000 VandrShieid XF 5 110,7150,00 limed Electric Lotk System (does not include chase door) s 3,,115.00 Fxtprior FmolornoftiloqP, Rib with Rox S 385,00 5talrdess Steel Lavatory iconcession) $ 950,00 Cuaq)uslte Mops SV4k (comes),lon p S 850,00 Paper Towel Dispenser S 85.00 Toilet Seat Cover Dispenser $ 7500 Sanitary Napkin DISPDSal 5, 48,00 C)(TWastebasket s 38,00 Paint Touch. up Kft, Sing1lo Color $ 4000 Faint Touch-up KI -Two Tune Color 5 50.00 Total Cost of Selexted Accessorlee from Accessories Price (List: Estimated Ome-Way Tramportation Costs to Site (qi Custom Ol:rtroni.' Items ftom Addendum A2 yStie Attached) 'total c—t P*' U-4 pf.�*A&t je& ska� Escirriateof morwrifilly payment an J year lease 1 3,93TJ9 fortudes at toxnl 4,000.00 000 0100 0.00 0.00 0,00 2,100.00 1'850,00 950.00 0,00 750 00 0.00 0.00 0.00 0.00 0.00 0-00 OM 0.00 0 00 0,00 0,00 OA 0,00 0,00 0,00 0Z S 9,850.00 S V75,00 $ 39,510100 5 194,935,010 1 This price quote is good for 60 days from date betow, and N accurate 11 accept this quote, Please process this order and complete, NJPA Member Number Digitallly4,ned by DarvW Rogbm Company Name DavidM CA- 'awid Rogars, o-CXT forIcurportued, Customer am, "us TI Rogers.o;ne Da to Date EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 Attachment #2 L E—M C 0 " (O'n40411 P'aI a1rl 1re@,faj Duntur,TX MUD] Nt' : tidag Analysivfor IIPr Fabdcat d IMAWngs, Pwk trrrsr,kaias "¢errs and Umpirvbffice. [ msf' l r r r iral fo, ,, 1111r W (,W, 010, N'WI K'g"Wilt ■' N""IF�i�rl� �I�r< �a�d °Y�11's�� �� �r`'� ■ Mack lCaarrerssaarr ery is rinM broa Wnwn.has altllhkaraar dtuflo % NVlfljding prkdrigfre fxwMfUlo aril Orman Site baublr! rat Prvfabrkatad ev 4 1 It Did Amount iuwiyYY.�.yy,�u. Y,Y,Y,Y,Y,Y,Y,Y,wYY mNMmmmMMm�mmmmmmmm�mmm Lr- raft C) � �i� Y O t ' ryy;p� q'ryq� v�gpb�wy�yp °-qpy��q� ^�N�r�Mp�u kip ull M"mJ4'°'AYMAY,414' P �wwannvxwuxv�xwxv x N", tltk 14W lY 9 2 8115 rrn�a �.r a "mmr r" l �YprtW "w�w!�praim�rrrrtwp'rWrrp„pi TOTAL IW DG 11T $1,014,;0100 The fw #[Ab I:11wNdio4 �rp��4�lmha� tl tt "� alrrr� 1� loo�'a w'r'1 ;ri% hoir,, P' . l3ext 11:111a x,, 14131 Midway Mod, wla* 610 A uaw, FX 7th "I 11 (4 V4) 4 -411t1' Paz, (1'14k 07411) (u CORIfirar1l1 v nx ri EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 City of Denton Parks and Recreation Restroom and Concessions Improvements Initial Opinion of Probable Cost January 18, 2016 BLC Architecture Subtotal of Trades Costs $252,097 Contractor's Overhead & Profit $37,815 Total Estimated Construction Cost $289,911 Miscellaneous Project Costs $28,794 Subtotal of Trades Costs $271,497 Contractor's Overhead & Profit $40,725 Total Estimated Construction Cost $312,221 Miscellaneous Proiect Costs S30.355 Subtotal of Trades Costs $206,494 Contractor's Overhead & Profit $30,974 Total Estimated Construction Cost $237,468 Miscellaneous Project Costs January 20, 2016 $24,473 EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 Mr. Herman Lawson Special Projects Manager City of Denton 809 South Woodrow Denton, Texas 76205 Re: City of Denton Parks and Recreation — Restroom /Storage /Concessions Buildings Initial Cost Estimate Assumptions and Clarifications Dear Mr. Lawson: Thank you for the opportunity to study the potential cost implications for designing and constructing new restroom /storage /concessions buildings for the Mack, North Lakes 5 and 6, and Roberts Fields facilities. As we discussed in our meeting of January 13, 2016, the City of Denton has received an estimated cost for construction of shop- fabricated facilities for these projects. The proposed facilities are of all- concrete construction built at the manufacturer's facilities to the Owner's needs and specifications and shipped and installed on the respective sites. The facilities are quite durable and designed to accommodate significant horizontal (wind) and vertical loads. The interior surfaces are painted or covered with fiberglass reinforced plastic panels (concessions area). Minimal site preparation is required for installation of these buildings. There are a number of manufacturers on the market capable of constructing similar facilities in their shops and delivering the finished buildings to the sites. It appears that each of the companies have proprietary approaches to the design and construction of these facilities, yet each likely is capable of meeting the city's needs. Yesterday, I provided to you preliminary cost estimates to site -build the facilities utilizing conventional construction techniques. This allows a number of local general contractors to build the facilities needed at each location. It is doubtful that most of the contractors have methods to be able to fabricate the structure at a central location and move them to various sites as needed. Therefore, it is very unlikely that general contractors will be able to compete against shop fabricated systems from a cost standpoint. The assumptions for consideration in comparing the shop- fabricated versus site - constructed facilities are as follows: • The manufacturers who utilize shop fabricated techniques generally develop modular construction systems. These systems take advantage of mass production techniques and equipment that minimal labor requirements. • The shop manufactured buildings likely can be moved to a different location if the need arises in the future. Site constructed facilities cannot be moved and utilized elsewhere. EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 1r, BLC Architecture, PLLC 1945 Lilac Lane Grapevine„ "texas 76051 617 -906 -9160 blc- archltecture.ccm • The shop fabricated structures are capable of withstanding higher wind loadings at less cost than site fabricated structures. • The shop fabricated structures can be fabricated and placed in operation more quickly than comparable site constructed facilities. • Site constructed facilities are assumed to be of all masonry construction for the walls, slab -on -grade construction for the floor slabs, steel roof framing and decks, asphalt shingle roofing systems and the interiors painted with epoxy paint throughout. • Shop constructed facilities are all concrete construction, including the roof panels, and all surfaces painted with the exception of the concessions walls, which are fiberglass reinforced plastic panels. • No HVAC is anticipated other than heating for the accessible plumbing chase and basic ventilation for the restroom and concessions spaces. • Toilet partitions for the site constructed facilities are planned to be 6" concrete block, cells filled. • Exterior walls are assumed to be 8" concrete block backup with grout - filled cells for load bearing, and an exterior masonry veneer. • The mechanical, plumbing and electrical systems will be similar between the two types of construction methods. • The proposed construction for the site -built facilities was chosen to be equivalent in durability to the shop fabricated systems. • The site -built systems likely will be more costly than the shop fabricated systems. • For both systems, it is important to consider handicap access from the nearest handicap parking area. The cost estimates include approximately 200' of 5' -0" wide concrete sidewalk to help accommodate this requirement. No accessible means of access from other areas of the site are not considered beyond this item. • The cost estimates include some miscellaneous costs for construction contingency allowances, estimating allowances, general conditions, contractor overhead and profit, materials testing and design and engineering fees. W EXHIBIT Date: Feb. 5,20|6 Report No.: 2016-011 We have an allowance of 30,000.00 for kitchen equipment. We can pull it out if it is not needed or if you would like it reduced. We are assuming the water, sewer, and electrical will all be located within 5 feet of the existing This price includes a concrete roof and Block building, so wind loads and durability would be the same as the precast buildings. RM111 M11 11 IF ���� MINDMEMMA W-4 Please feel free to give me a call if you have any questions about this information. Sincerely, Barry L. Canning, AIA — Principal EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -01: �.I11�(SO11S�PUCtIO11 TOTAL COSTS THIS PROJECT PROPOSED CONTRACT BLDG /SITE /GC SQFT COST SITE SQFT DATE: SITE 0.00 BUILDERS RISK PROJECT: OWNER: i FEE BLDG W /GC o YES GENERAL LIABILITY ADDRESS: OVERHEAD: i 6.00% TAX TOTAL YES LENGTH OF PROJECT (days) 1 PROFIT: SQFT: 6.00% TOTAL COSTS �������������������������������������� o 75.0 Phase IDescription Notes Budget $ I Cost Type SUBCONTRACTOR 003116 -16- Estimating Expense Shipping 500.0 GENERAL i 022113- - Site Surveys 1,800.0 023216- IMaterial Testing 4,500.0 EXISTING CONDITIONS 033000-- Cast in Place Concrete 36,000.0 CONCRETE 042200- - Concrete Unit Masonry 129,000.0 MASONRY 053100- - Metal Roof Decking 18,000.0 METALS 076200- - Sheet Metal Flashing and Trim 39,950.0 THERMAL & MOISTURE 081213- - Hollow Metal Frames & Doors 13,000.0 083323- - Overhead Coiling Doors 9,000.0 089100- - Louvers 2,200.0 089500- - Vents 1,500.0 OPENINGS i, 099113- - Painting 25,000.0 FINISHES 102113 -13- Metal Toilet Compartments 4,500.0 102813- - IToilet Accessories 1,500.0 102813 -10- Toilet Accessories Labor 1,500.0 104416- - Fire Extinguishers 600.0 SPECIALTIES 119999- - Equipment Miscellaneous 30,000.0 EQUIPMENT 129323- - Trash and Litter Receptors excluded 220000- - Plumbing 64,300.0 PLUMBING 230000- - HVAC 30,250.0 HVAC% - 260000- - Electrical 57,263.0 ELECTRICAL EM 312316- - Excavation 15,000.0 EARTHWORK EM 329000- - Landscape 6,000.0 EXTERIOR 330000- - Utilities excluded 501200- - Architectural 65,000.0 EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 1 BLC Architecture EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 Attachment #4 From: Scott Richter < scott @scottrichterconstruction.com> Sent: Monday, January 25, 2016 1:16 PM To: Mays, James M.; Donnell, Jason C Cc: Vorel, Emerson M.; Brock, Elton D Subject: Re: Restroom/Concession Files Jim. We went through this and we think these could be built for no more than that 757k number. How far under that would be determined by a lot of different variables that are not known till you get out there and do borings and go through the city permitting process. Thanks, Caliber Construction Inc Scott Richter 504 Chambers Denton Tx 76205 940 - 898 -8784 Office 940 -591 -0704 Fax Scott @scottrichterconstruction.com City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -331, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley March 1, 2016 Legislation Text Agenda Information Sheet SUBJECT Receive a report, hold a discussion, and give staff direction regarding the City's budgeting process, financial planning assumptions, and the debt service tax rate impacts related to the 2014 bond election and upcoming issuance of Certificates of Obligation. BACKGROUND The purpose of this work session is to begin discussions and presentations on the FY 2016 -17 budget. The first presentation attached as Exhibit 1 is a general overview of the City's budget process with emphasis on the General Fund. This presentation is for informational purposes only. The second presentation (Exhibit 2) provides information on the impact of the general capital program including the 2014 bond program to the City's debt service tax rate. Options are presented for the mitigation of the estimated debt service tax rate increase. Several additional budget presentations are scheduled over the next several months leading up to the presentation of the City Manager's proposed budget at the August 4h budget work session. 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 1: General Budget Presentation Exhibit 2: Debt Service Tax Rate Presentation Respectfully submitted: Chuck Springer, 349 -8260 City of Denton Page 1 of 2 Printed on 2/26/2016 File M ID 16 -331, Version: 1 Director of Finance City of Denton Page 2 of 2 Printed on 2/26/2016 h rvvm d by I cx:ls i''I ma fS. ,f r 'i 'i J r lm, i i C� U TU V U bA O '� 4-j Ct t-+ U rM4 w � ww rE*' �r J �r i bJ0 C� c� N O N c� O O w z " " " " a) DO d DO DO M M' v0 N N N c� N O ►s' U w w. �m to d Vn 4-J N bz O O ct O N v� N O -J' DO V) ct U O iR to �s N C� O �U O cn O� N � mc� U N ,S� O � U C� O � C bA Ct �U O �4-J 4-J N �� I� i J I M U H ^ ,O M N U v� N N 4-J U) cn � N U � .E c N C) N Q � i ''d r c� ^ bA O O O N � •N U 4-J C� ^ U � 4—+ N N c� C� U � U � U '-� u � U N 4-J w r-4 I R c \ E a « �} < « © < ` ^� < .. 4 :/. `/z » a N / 3 S \ » 3 0 £ & R » J �r I� ON Ln Ln ui W b�A w ct ON �w. 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C/� L - W-, City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -274, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM/ ACM: John Cabrales, Jr. Date: March 1, 2016 SUBJECT Receive a report, hold a discussion, give staff direction regarding the Public Art Committee's recommendation to construct an outdoor sculpture of a 9/11 Firefighter's Memorial Bell Tower on the north side of Central Fire Station located at 332 E. Hickory St., and purchase a replica replacement bell to be located in City Hall West bell tower, as City of Denton Public Art. The Public Art Committee recommends approval (8 -0). The Historic Landmark Commission granted a Certificate of Appropriateness on February 8, 2016. BACKGROUND The Public Art Committee would like to erect a memorial to the firefighters who perished in the World Trade Center on September 11, 2001. It will be located at the front entrance to Central Fire Station and will reference the New York Twin Towers. The City's original fire bell will be removed from City Hall West, refurbished, and suspended from the top of the lighted twin towers sculpture. The design of the long steel windows of Central Fire Station call for a tall structure. The Cor -ten steel towers art piece will complement the existing steel windows and doors and retain the industrial design of the fire station. Because Central Fire Station has received Local Historic Designation, the Public Art Committee recognized the need for the final design to reflect the original building construction. When viewing the bell tower from the east and west, there is a suggestion of the shape of the Twin Towers. The City of Denton was the recipient of an I -beam from the World Trade Center, along with a generous donation of a granite pedestal meant for its display. These two elements combined, captures those feelings that exist when considering the sacrifice made by 343 firefighters on that September day. The memorial is to be dedicated to the firefighters who lost their lives during the September 11, 2001, (9/11) attack on the World Trade Center. The Kirkpatrick Architecture Studio has been selected to design the art project. Kirkpatrick has been involved with the design of multiple fire stations nation -wide including Denton Fire Stations No. 7 and 2 and the conversion of the former City Power Plant to the current Central Fire Station. Because Central Fire Station and City Hall West have received Local Historic Designation, the construction of the art piece has received a Certificate of Appropriateness from the Historic Landmark Commission. The Public Art Committee approved these projects and has the intent of dedicating the memorial on September 11, 2016, the 15'h anniversary of the attack on the World Trade Center. City of Denton Page 1 of 3 Printed on 2/26/2016 File #: ID 16 -274, Version: 1 A replica bell will be cast and hung in the City Hall West bell tower. RECOMMENDATION Staff recommends approval of the Public Art Committee's recommendation to create a memorial to the firefighters who perished in the World Trade Center on September 11, 2001, to be located in front of Central Fire Station, and produce a replica replacement bell for City Hall West. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Public Art Committee recommend approval of the 9/11 Firefighter's Memorial Bell Tower project on January 7, 2016, with a vote of 8 -0. The Historic Landmark Commission granted a Certificate of Appropriateness on February 8, 2016. (Exhibit 2) FISCAL INFORMATION The total cost of the 9/11 Firefighter's Memorial Bell Tower project will be funded from the 2014 Capital Improvement Bonds for Public Art for Public Safety. The project is consistent with the City of Denton Public Art Policy approved by Resolution R2013 -021, and will be funded with 2014 Capital Improvement Program Bond previously authorized and encumbered for such purpose. 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: 4.4 Provide and support outstanding leisure, cultural, and educational opportunities EXHIBITS 1. Illustration of the 9/11 Firefighter's Memorial Bell Tower 2. Certificate of Appropriateness 3. Public Art Committee Minutes of Feb. 4, 2016 Respectfully submitted: Emerson Vorel, Director Prepared by: City of Denton Page 2 of 3 Printed on 2/26/2016 File #: ID 16 -274, Version: 1 Janie McLeod Community Events Coordinator City of Denton Page 3 of 3 Printed on 2/26/2016 Exhibit 1 9/11 Firefighter's Memorial Bell Tower 4 (::('� I`r 11 DENTON February 18, 2016 Exhibit 2 221 N. ELM STREET, DENTON, TEXAS 76201 • (940)349 -8541 • (940) 349 -7707 PLANNING DIVISION, DEVELOPMENT SERVICES DEPARTMENT Emerson Vorel Director of the Parks and Recreation Department 601 East Hickory Street Denton, Texas 76205 SUBJECT: COA16 -0001, 9/11 Firefighter's Memorial Bell Tower Dear Mr. Vorel: The Historic Landmark Commission, at their meeting on February 8, 2016, approved your application to allow a public art project, the 9 -11 Firefighter's Memorial Bell Tower, to be constructed at the Central Fire Station located at 332 E. Hickory Street. The art is to be dedicated to the firefighters who lost their lives during the 9 -11 attack on the World Trade Center. If you have any questions, please do not hesitate to contact me at (940) 349 -7274. Sincerely, Katia Boykin, CPM Planning Supervisor Cc: Emily Loiselle, Building Inspections Division Todd Varner, Community Improvement Department Roman McAllen, Planning Division "Dedicated to Quality Service" www.cityofdenton.com Exhibit 3 DRAFT PUBLIC ART COMMITTEE MINUTES REGULAR MEETING February 4, 2016 Members present: Jim Clement, Millie Giles, Gerri Veeder, Frank Mayhew, Mike Barrow, Guy Bruggeman, Brian Wheeler, and George Neil (arrived at 4:55 p.m.) Member absent: Glen Farris Ex Officio present: Tracy Bays- Booth, GDAC Staff present: Emerson Vorel, Janie McLeod, and John Cabrales Guests: Margaret Chalfant, Public Art Master Plan Consultant Lauren Barker, Manager, Keep Denton Beautiful Josh West, Artist Chair Clements called the meeting to order at 4 p.m. CONSIDER APPROVAL OF THE PUBLIC ART COMMITTEE MINUTES FOR: January 7, 2016. The minutes were approved by a motion made by Barrow and Mayhew seconded with a vote of 7 -0. DISCUSSION ITEMS: KDB Mural Committee. Lauren Barker, Manager of Keep Denton Beautiful (KDB), reviewed KDB's the request to have the murals on Sherman and Bell, and Bonnie Brae repainted. The Public Art Committee (PAC) agreed that the PAC would govern "temporary art" and it would not be considered a part of the City's art collection. An Informal Staff Report could be used to communicate with City Council on the recommendations from the KDB and PAC's on temporary art projects. The PAC discussed concern about not having a to -scale sketch for review before recommending approval for the large area of space. The possibility of having a template that could be followed for future temporary murals. The KDB ad hoc committee, that includes members of the PAC, will oversee the temporary art requests and bring forward for PAC's approval. KDB will partner with Community Improvement Services (CIS) to paint over any graffiti that may occur. It was suggested to use the two locations as a test case for temporary art and as the process moves forward that changes may be made. Temporary Art Policy. The PAC discussed the possible need for two policies —one for temporary art and one for murals. The committee will work on the policies. Update on Fire Station Project. Giles said that several meetings had taken place with Kirkpatrick Architecture Studio and progress is being made on the fire station project. It has been suggested to use Baldwin Metal in Dallas to produce the lettering and metal. The project will go before the Historic Landmark Commission (HLC) for their approval prior to being presented to City Council. Exhibit 3 DRAFT Proposal for Art Work at Fire Station. Giles introduced Josh West, a local artist, who showed samples of his work and expressed an interest in creating a mural for one of the fire stations. Display of Poems for Walk of Fame. McLeod showed an illustration, with the dimensions, color and angle, of the bases for the Downtown Walk of Fame poems. The dedication of the poems and the Walk of Fame is scheduled for March 29 at 4 p.m. Mural on Patterson Appleton Arts Center Building. Bays -Booth discussed the temporary art that had previously been proposed and asked that the art could now be a permanent mural. She showed illustrations of Mick Burson's artwork and suggested that it would work well with the existing outdoor art on the east side of the Center. The Patterson - Appleton Arts Center is a historical building and Bays -Booth had requested to be on the Historic Landmark Commission's agenda to get their approval on the mural. Bays -Booth said that there were plans to get sponsorships for the artist's payment. The PAC will pay $2,000 for the artists' fee rather than get sponsorships. ACTION ITEMS: 9111 Firefighter's Memorial Bell Tower at Central Fire Station. A motion was made by Barrow and seconded by Wheeler to approve the design for the 9/11 Memorial Firefighter's Bell Tower in front of Central Fire Station. The sculpture will be paid from the Capital Improvement Bond sales for safety projects. The vote was 8 -0. Purchase of Jesus Moroles Art. Wheeler made a motion to approve the purchase of the untitled fountain by Jesus Moroles, from the Red and White Gallery, at a cost of $65,000, with an additional $15,000 offered in a tax deduction. The art will be funded through the Capital Improvement Program Bonds designated for parks. The motion was seconded by Veeder and was passed with a vote of 7 -0. Giles abstained from the vote since she had been involved with the negotiations with the Gallery. KDB Mural Project. A motion was made by Bruggeman to approve the KDB mural project as a test case and was seconded by Mayhew. The motion was approved by a vote of 6 -1. Mural on Patterson Appleton Arts Center Building. A motion was made by Giles to pay Mick Burson $2,000 to illustrate a mural on the outside of the Patterson - Appleton Arts Center. Wheeler seconded the motion and it pass with a vote of 8 -0. STANDING ITEM: Public Art Master Plan. Chalfant said that her contract with the City expires the end of February and she expressed her appreciation for the support and assistance from the PAC. She shared a brief preview of the Plan. There being no further business, the meeting was adjourned 6 p.m. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -365, Version: 1 Legislation Text 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 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -345, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding Consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues involving a proposed Rayzor Ranch Public Improvement District No. 1 Reimbursement Agreement, where the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. [ID 16 -346] City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -299, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 552.071; Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086. Consult with the City's attorneys regarding the present status of the Denton Municipal Electric - Energy Management Organization's operations regarding EEI contract negotiation, ISDA contract negotiation, and other related contracting issues; discuss, deliberate and provide the City's attorneys and staff with direction. A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. [ID 16 -286] City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 16 -301, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with the City's attorneys regarding the present status of pending litigation entitled: The City of Denton, Denton, Texas v. NRG Power Marketing LLC, et al, Cause No. 15- 01404 -16, now pending before the 161' Judicial District Court in and for Denton County, Texas; discuss, deliberate and provide the City's attorneys with direction and any recommendations regarding such legal matter. A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. [ID 16 -287] City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -348, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests generally located at the Southeast corner of E. McKinney Street and S. Mayhill Road, the affected tract located in the Morreau Forrest Survey, Abstract No. 417, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. ( Mayhill Road Widening and Improvements project - Parcel M088 - BCI Real Estate Ventures, LP) [ID 16 -349] City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -326, 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 in the Gideon Walker Survey, Abstract 1330, City of Denton, Denton County, Texas and being generally located southwest of the intersection of Edwards Road and Swisher Road. 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. (Villages of Carmel, Phase 5B - prospective Parks Department property purchase) City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 16 -347, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the E. Puchalski Survey, Abstract No. 996, located generally in the 1200 block of the east side of N. I -35E, City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Denton Fire Station No. 3 Rebuild) City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTON Legislation Text File #: ID 16 -370, Version: 1 Agenda Information Sheet SUBJECT National Community Development Week City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 16 -358, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Anyah Martinez regarding a children's museum using City Hall West as a potential space for the project. City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 16 -366, Version: 1 Agenda Information Sheet SUBJECT Willie Hudspeth regarding City Hall. City of Denton Page 1 of 1 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -011, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at City of Denton North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc. in the not -to- exceed amount of $757,073). FILE INFORMATION This purchase recommendation is for the design, engineering, and installation of three (3) prefabricated restroom facilities for the City of Denton Parks Department. During the bond election of 2005, the citizens of Denton approved the replacement of the restrooms at North Lakes Park Fields 5 and 6, the restroom at Mack Park's Roberts Field, and the restroom concession at Mack Park. All of these structures were built in 1979, and the City has experienced higher maintenance costs, along with deteriorating structures. In today's market, pre- fabricated restrooms are used widely within the Parks and Recreation industry and have become the standard in many Federal, State and Local Parks. Texas Parks and Wildlife and the Ft. Worth District Corp of Engineers Office utilize these same products within parks at the surrounding lakes in our perimeter, and many locations in the United States. The CXT pre- fabricated structures are built to last -with a standard twenty (20) year structural warranty, simple to install, offer easy maintenance, standard parts replacement, and are vandal resistant. Additionally, these structures can be easily picked up and relocated over time, as needs change. (See Exhibit - Photos). In order to ensure that the City is receiving the best value, staff researched various construction methods, obtained "info final" construction pricing from four (4) contractors. The "info final" pricing submitted by the contractors cannot be utilized for contracting purposes, as the City is required by Texas Local Government Code 252 to compete this opportunity with a formal and advertised solicitation. This pricing was obtained as a comparative benchmark only (Exhibits 2 and 3). During the final evaluation process, it was apparent that one (1) informal price was submitted to the City as a lower -cost option, however, this pricing appeared to be open- ended, citing issues such as soil testing, when questioned by staff. Additionally, the structural warranty for the standard site -built structures are limited to a two (2) year warranty period. City staff have concluded that prefabricated concrete restrooms are the "best City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -011, Version: 1 valued" option, especially considering the long term twenty (20) year structural warranty provided by the CXT product. The pricing submitted by CXT, Inc. has been competitively bid through a contract facilitated by the National Joint Powers Alliance (Exhibit 4). In accordance with the procedures of Texas Local Government Code 271.102 (Cooperative Purchasing Participation), the City of Denton, Texas is authorized to participate in Cooperative Agreements. City of Denton staff recommend the purchase of the CXT products as the "best valued" solution. RECOMMENDATION Approve a cooperative purchase agreement through NJPA Contract# 022113 with CXT, Inc. in the not -to- exceed amount of $757,073. PRINCIPAL PLACE OF BUSINESS CXT, Inc. Spokane Valley, WA This project will be facilitated and the buildings manufactured by the local plant in Hillsboro, Texas. ESTIMATED SCHEDULE OF PROJECT The installation of the buildings is estimated to be completed 120 days after Purchase Order issuance or approximately July 31, 2016. FISCAL INFORMATION This project will be funded from General Obligation Bonds approved in the 2005 Capital Improvements Program using the following accounts numbers: 400079470.1350.40100 - $466,218 400080470.1350.40100 - $290,855 Purchase Order 171451 will be revised to add the individual buildings for each park area. 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: 1.1 Manage financial resources in a responsible manner City of Denton Page 2 of 3 Printed on 2/25/2016 File M ID 16 -011, Version: 1 EXHIBITS Exhibit l: CXT, Inc. Photos Exhibit 2: Pricing Comparison Exhibit 3: Staff Report Exhibit 4: NJPA Contract Award Exhibit 5: Ordinance Exhibit 6: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Emerson Vorel at 349 -7460. City of Denton Page 3 of 3 Printed on 2/25/2016 S l..li' S RIEGI N AND C N.I.. ( -µ'T IN FOR II HKPI GN d Region , Northeast Region North Central Region Northwest Region Rocky Mountain Region Canada - BC, AB, SK & MB Regions Southeast Region South Central Region http: / /www.cxtinc.com/sales- region - information. asp 2/18/2016 http: / /www.cxtinc.com/ 2/18/2016 CXT Concete Buildings Page 2 of 3 EXHIBIT 1 TOUGH AS MOTHER NATURE r http: / /www.cxtinc.com/ 2/18/2016 CXT Concete Buildings EXHIBIT I Page 3 of 3 N • Built to Last • Simple to InstaLl. • Easy to Maintain • Vandal Resistant CERTIFICATIONS � : ....................... L- B. Foster Flame II RaR Piroduc-ts II Piling Piro acts I Threaded Piroducts � C"bated Piroducts � CXT Concrete "Ties Fabrk.ated Biridg(,� Piroducts http://www.cxtinc.com/ 2/18/2016 CXT Concete Buildings - Arapahoe Page 2 of 3 EXHIBIT I EASTIERN U.S. Mike F:mncis Phwie: 509.892,3235 1:..:.maR. affra u-i cis@ Wfosteii-.com CX I Coincrete BuiLding InstaUaflon SecdoinaL F:Lusti Site IInstaLL F1 ,USH / SF10WER Pad Diagram Utility Stub-Up Drawings Installation Instructions U ni .IiI ry / CO IqC 1!:..:. SS I ON Pad Diagram http://www.cxtinc.com/professional—site—services.asp 2/18/2016 Precast Buildings and Precast Products - CXT Parts EXHIBIT 1 Page 1 of 1, r�wi�rnn7 tl „ &� n' &eur�sr�uu a�lw Concrete Buildings Buildings "R °ext ulres & Professional Maintenance &Replacement PartsPark Products Gs veirinmen Sales Region t ttlttlrs Site Services Warranty Purchasing Information t("XI, categories 0oou plardwvare Dd'OVS pi:'Oe¢au'tlra8 O asteneirs and TGolrs p "Uaash IP' xhwes pQalnt Sup: >plle s Fark Access69VVc-, Restrown Opstlons Slg,',Vncs; Su:,oBrgd. 'U''aauit F dxn:i.Are^;s tsaaH p,'ertt:,s WNp'1P:doy ly s if you dot n't sae the product you want, plessse capll 800..898 -67680 of er nadp sa0es Hgoster.coun. ask t =none Quantlty In Ba M" q2% CXT customer service representatives are available Monday - Friday 7:30 a.m. to 4:30 p.m. Pacific Standard Time at 800.663.5789. Or email us. C ljlCl<, O'ncue foil nu'da,rur tou urn. Below Is a list of replacement part categories CXT offers. Select a category, or search for a part using the search feature above. am Clearance Door IHardware I..aoors Lod lift, CXT sells replacement hardware and precast products for our Flush /shower, vault and utility/concession buildings. We carry a variety of replacement parts such as toilets, sinks, galvanized and fiberglass doors. We can also provide you with all necessary accessories, I.e., door stops, deadbolts, grab bars, toilet paper holders, faucets, solar fans, signs and much more. CXT carries restroom fixtures by Zurn, Kohler and Willoughby. p...,B. IFostar Hoane I IItaNN Products I MOO nag NoducNs I "p'tureaded Products I Ccated Products I CXT Coirmrete "rtes I Fab irlcated IBrlldge Products http: / /www.cxtincparts.com/ 2/18/2016 N H H W a 0 a� v 0 0 a 0 w 0 a� 0 a 6 4° 8 0 0 0 O O O � � � N � N E/9 C L O O a A. �v 0 0 U 0 0 U � a O F+ c U � � v� o a o a � aa, z EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT: CXT Restroom and Concession Purchase EXECUTIVE SUMMARY: On September 15, 2015, a Consent Agenda Item was reviewed by Council regarding the consideration of an ordinance authorizing the City Manager or his designee to execute a purchase order through National Joint Powers Alliance (NJPA) Contract# 022113 -CXT for the purchase of prefabricated concrete restroom buildings to be located at North Lakes Park Fields 5 and 6, Mack Park Roberts Field, and the restroom concession at Mack Park; and providing an effective date. (File 5880- awarded to CXT, Inc., not -to- exceed $757,073). Following consideration, the City Council gave direction to staff to review alternate means and methods of construction and to determine if any local architectural, engineering, and construction firms in the Denton area could supply the Parks and Recreation Department with comparable buildings for a lesser price. BACKGROUND: During the bond election of 2005, the citizens of Denton approved the replacement of the restrooms at North Lakes Park Fields 5 and 6, the restroom at Mack Park's Roberts Field, and the restroom concession at Mack Park, structures which were built in 1979. Parks and Recreation Department staff researched various construction methods, obtained construction pricing from several contractors, and determined that prefabricated concrete restrooms were significantly less expensive than standard restrooms (Attachment 1). Prefabricated restrooms are widely used throughout the Parks and Recreation industry and have become the standard in many state and municipal Parks Departments. This purchase is for the design, engineering, and installation of three (3) of these restroom facilities. The pricing has been competitively bid through a contract facilitated by the National Joint Powers Alliance. In accordance with the procedures of Texas Local Government Code 271.102 (Cooperative Purchasing Participation), the City of Denton, Texas, is authorized to participate in Cooperative Agreements. DISCUSSION: Staff solicited estimates from 10 construction firms, the results of which are summarized below: • BLC Architecture met with staff and concluded that site -built concessions and restrooms could be built for $923,223. Facilities constructed with the design would not be able to be repurposed and moved at a later date, and will cost $168,148 more than the CXT option presented. • Lemco presented several options including site built units for $1,014,000; alternate stucco exterior concrete modular buildings for $724,000; and the specified CXT units for $857,993. The Walcon modular series of buildings were $33,000 cheaper than the CXT model but the stucco exterior construction is less resilient than the 4 -inch EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 pigmented concrete used in the CXT Models specified. Additionally, the CXT units were a total of $100,917 more expensive if purchased through Lemco, not CXT. No design fees are included in the Lemco figures. • Links Construction provided an estimate for site built buildings for $665,488.25. The addition of similar permits and bonding that has already been supplied for the CXT option increases this cost to $677,377.75, have allowed for a total savings of $79,697.25 for three buildings. This option would provide the Parks and Recreation Department three restroom and concession buildings made of CMU block. Repurposing the buildings at a later date would not be an option with this purchase. All design fees are included in this Links bid. Caliber Construction supplied a response that they could build these three buildings for an amount not to exceed the $757,000 quote from CXT with the caveat that the results from borings and geotechnical reports did not require significant amendments to the foundations of any of the buildings. There is no gain with this option as there is no anticipated cost savings and the building could not be repurposed or moved to an alternate location at some point in the future. No design fees are included in the Caliber figures. 0 Schmoldt Construction - No response. 0 Crossland Construction - No response. • BR Construction - No response. • TB Builders - No response. • TCMC INC - No response. • Tyson Construction - No response. CONCLUSION: Following careful consideration of competing estimates and associated alternates, the Parks and Recreation Department is convinced that the best value purchase for construction of the three concrete restrooms remains CXT, courtesy of their quality product, competitive quote, and commitment to produce the 3 concrete restrooms at their Hillsboro, Texas, plant, where they employ local tradesmen for construction and install. The Parks Department will schedule a Work Session Discussion for March 1st, followed by an Action Item, to advance the purchase of the patterned concrete restrooms via CXT for City Council approval of the cooperative purchase agreement, NJPA Contract# 022113 with CXT, Inc., not -to- exceed the amount of $757,073. EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 ATTACHMENT(S): 1) CXT Estimates 2) Lemco Estimates 3) BLC Architecture Memo 4) Links Construction Estimates 5) Caliber Construction Email STAFF CONTACT: Emerson Vorel, Director of Parks and Recreation 940 - 349 -7460; Emerson.Vorel @cityofdenton.com Date: Feb. 5, 2016 Report No.: 2016-011 Attachment 4 1 Malibu wfth chase rest rcom/concession building. Standard features Indude sisinulated barnwood texture walls, simulated cedar shake textured roof, interior and exterior lights. vitreous china fixtures In restroorn, three cornpartment staintess steet sink In concession area, roll up concession window, off doaidpd and set up at site, Malibu S 137,000X0 137,000,00 Final Connection to Utifilies S 4.0130= OptiouaC Wall Texture _ 0 Split Face Block ShuckTrowel r.xpcised Aggregate 5 2,000,00 Optional RON 7oXlW9E_._ — [3 DoURIb S 9010,00 'Front Porch" Style Privacy screen 5 1,500 no Two-Tone Color $cherne s 350,00 Stainless Steel Numbing FiAursis 6 2,650,00 E'lect'ric: Hand Myers 2,100,00 Electronic Flushvdiyes 5 1.850.00 Electvonrc Lavatory Faucets t 960�,00 Ectgy�or Mounted ADA nrloking Fount,sioi 1a 2.700,00 30- gallon Electric Water Heater 75000 Skylight in Flestworn iedchl Qty! 4 S 42500 Marine Grade, Skylight Ir, Aewoarn (each) Cly: 4 S 1,40000 Marine Package for Utra Corrosion Resistarce s 9,000.00 'File floor In ReWoom s 10,70000 Fihdirglhss Entry and Chase Doors and Frarnes S 3,450,00 VandlShWd XT s 10,75000 Timed Efertdc Lock System (dioes not include chase do*6 5 3, 115 00 Exte6or Frostproof Hot# Rib wfth Ams 5 385.00 Sta,nless Steet Lavatory ocon(es$Wn T S SWOO Composite Mop Sink (conces0on) 5 $50,00 Paper Towel Dispenser s WOO Toilet Seat Cover Di�spenser 5 75.00 Sanitary elapkm Disposal s 4660 CXT Wastebasket S 38.00 Point TouCh vp Kit - Single Color $ 4000 Point TourFl-up Isit -Two Tone Color 5 5000 Total Cost of 50#00d Accessories from Accessorles, Price List Estimated One-Way Transportation, Costs to Site iquoie)d Custom Options: i1afriti rjorn Adderiduin Al (5iee Attached) ME FirrImiatedrisonflityporyment onSyear lease $0,01WIO Total Cost oer Unit placed at Job Site, Is 4«000,00 000 000 0,00 2,100,00 1,650.00 9$000 000 750.00 0,00 0,00 0010 0.00 0-00 000 000 000 950,00 850,00 0,00 0,00 0.00 0.00 I A50.00 11,700,U) 143,64100 003'1,91.00 1 This price quote is good for 60 days froirn date lw.lcav, and h; acc iTate I accept khts quote. Please process this order, and complete NJPA Member Number Company Name David Rij,scrg ON cn-Oxivo McKiers, . ...... David c.CXT ou=cxT lood"waria". CXT Sales Representative C.U,torroar. Rog rsa, 6 com, C-U 5 lj,j� WW, e 11 fihali Da t )r Date: Feb. 5, 2016 EXHIBIT V f) v o", Report No.: 2016-011 Malibu with chase restroom/concession building. Standard features Include simulated barnwood texture walls, simulated cedar shake textured roof, interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink In concession area, roll up concession window, off loaded and set up at site. Malibu 5 137,000.00 137,000,00 Final Connection to Utilities $ 4,000.00 Optional Wall Texture o— Q Split Face Block r] Struck Trowel Q Exposed Aggregate S 2,00000 Optional Roof Texture a ❑ Delta Pit) Exposed Aggregate $ 90000 'Front Porch" Style Privacy Screen 5 1,50000 Two-'r'one Color Scheme 5 35000 Stainless Steel Plumbing Fixtures $ 2,650.00 Electrlc Hand Dryers $ 2,100.00 Electronic I'll S 1,850.00 Electronic Lavatory Faucets $ 950o0 Exterior Mounted ADA Drinking Fountain S 2,700.00 30- gallon Electric Water Heater S 760,00 Skylight In Restil (each) Cry: 4 5 425.00 Marine Grade Skylight in Restroom (each) City: 4 $ 1,400.00 Marine Package for Extra Corrosion Resistance $ 9=0100 Tile Floor in Restfoom $ 10,700,00 Fiberglass Entry and Chase Doors and Frames S 3,450o0 Vandl5hleld XT S 10,750,00 Timed Electric Lock System (does not Include chase door) $ 3,115.00 Exterior Frostproof Hose Rib with Box S 385,00 Stainless Steel Lavatory (concession) $ 950,00 Composite Mop Sink (concession) $ 850.00 Paper To-el Dispenser $ 85.00 Tol let Seat Cover Dispenser $ 7500 Sanitary Napkin Disposal $ 49.00 CXT Wastebasket 38,00 PaInt'rouch-up Kit - Single Colo( S 40.00 Paint Touch-up Kit -Two Tone Color 50.00 Total Cost of Selected Accessories from Accessories Price List: Estimated One-Way Transportation Costs to Site (quote); CustOmOPtions: Items from Addendum A3 (See Attached) Total Cost per Unit Placed art Job Site: Estimated monthly poyment on 5 year least $ 5,318.16 reccludes an ram) This price quote Is good for 60 days from date below, and is accurate and complete, "gl""' signed "Y Dav,d Rogers DN: cn=13avai Rogers, David o=CXT Irloorporated, 0utCX7IM00rP0rl CXT Sales Represen �fvp Roger0.0ji-orogersamost ser,rom.cmUS 41 I accept this quote. Please process this order. 4,000100 0.00 0.00 0.00 0.00 0.00 Z100o(i 1,850.00 950-00 000 750.00 0.00 0,00 0,00 040 0,00 0A)O 0,00 0,00 0.00 0.00 0.00 000 0,00 D.00 0.00 0.00 9,850.00 11,700,00 99,997.00 258,347,00 1 N IPA Member Number Company Name Customer life A uJ All giro Date Date: Feb. 5, 2016 EXHIBIT4 Report No.: 2016-011 Malibu with chase rest room/concession building. Standard features include simulated barnwood it texture walls, simulated cedar shake textured roof, interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off ora loaded and set tip at site. Makbu s 1137,4111f C* 137,000,00 Noel Connection to Utiflues 5 4,000,00 Upilonal WaP Texture ... 17711 Split Face Flock Struck Trowe; Exposed Aggregate 5 2J00(1,00 Optional Ro<)( Texture -om, ED Deltaffib ExposeclAggregate S .00 'Front Porch' Style Privacy Screen S 1,500-00 Two-Tone Colm Scheme 5 350,00 StaWess Steel i'llumlAng Fixtures $ 1650-00 kiectric Hand Dryers S 2, 1 W 00 Electronic Flush Valves 1,650,00 Hecironic Lavatory Faucets S 950,00 ExleelorMounted ADA Drinking Fountain 5 2,700,00 30•qaion EiecWc Water Heater 5 750,00 5k5dight in Ro8troom feach) Oty: 4 S 425SK) Wrine Grede Skylight in Restroom jeachq (Ity: 4 S 1,43GrO0 Marine Package for Extra CwQajun Ru5r5tarrce S 91=00 Title Floor in Filstroom S 10,700-00 Fiberglass Entry and Chase Doors and Frame5 S 3,45000 VandrShieid XF 5 110,7150,00 limed Electric Lotk System (does not include chase door) s 3,,115.00 Fxtprior FmolornoftiloqP, Rib with Onx S 385,00 5talrdess Steel Lavatory iconcession) $ 950,00 Cuaq)uslte Mops SV4k (comes),lon p S 850,00 Paper Towel Dispenser S 85.00 Toilet Seat Cover Dispenser $ 7500 Sanitary Napkin DISPDSal 5, 48,00 C)(TWastebasket s 38,00 Paint Touch. up (It, Sing1lo Color $ 4000 Faint Touch-up KI -Two Tune Color 5 50.00 Total Cost of Selected Accessorlee from Accessories Price (List: Estimated Ome-Way Tramportation Costs to Site (qi Custom Ol:rtroni.' Items ftom Addendum A2 yStie Attached) 'total c—t P*' U-4 pf.�*A&t je& ska� Escirriateof morwrifilly payment an J year lease 1 3,93TJ9 fortudes at toxnl 4,000.00 000 0100 0.00 0.00 0,00 2,100.00 1'850,00 950.00 0,00 750 00 0.00 0.00 0.00 0.00 0.00 0-00 OM 0.00 0 00 0,00 0,00 OA 0,00 0,00 0,00 0Z S 9,850.00 S V75,00 $ 39,510100 5 194,935,010 1 This price quote is good for 60 days from date betow, and N accurate 11 accept this quote, Please process this order and complete, NJPA Member Number Digitallly4wtod by DarvW Rogbm Company Name DavidM CA- 'avid Rogars, o-CXT forIcurportued, Customer am, "us TI Rogers.o;ne Da to Date EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 Attachment #2 L E—M C 0 " (O'n40411 P'aI a1rl 1re@,faj Duntur,TX MUD] Nt' : tidag Analysisfor IIPr Fabdcat d IMAWngs, Pwk trrrsr,kaias "¢errs and Umpire,Uffice. [ msf' l r r r iral fo, ,, 1111r W (,W, 010, N'WI K'g"Wilt ■ Mack lCaarrerssaarr ery is a rinM broa Wnwn.has aH lhkaraar dtuflo % NVlfljding prkdrigfre fxwMfUlo aril Orman Site baublr! rat Prvfabrkatad ev 4 1 It Did Amount iuwiyYY.�.yy,�u. Y,Y,Y,Y,Y,Y,Y,Y,wYY mNMmmmMMm�mmmmmmmm�mmm Lr- raft C) � �i� Y O t ' ryy;p� q'ryq� v�gpb�wy�yp °-qpy��q� ^�N�r�Mp�u kip ull M"mJ4'°'AYMAY,414' P �wwannvxwuxv�xwxv x N", tltk 14W lY 9 2 8115 rrn�a �.r a "mmr r" l �YprtW "w�w!�praim�rrrrtwp'rWrrp„pi TOTAL III DG IT $1,014,;0100 The fw #[Ab I:11wNdio4 �rp��4�lmha� tl tt "� alrrr� 1� loo�'a w'r'1 ;ri% hoir,, P' . l3ext 11:111a Fax!979 4741, 617S-1, x,, 14131 Midway Mod, wla* 610 A uaw, FX 7th "I 11 (4 V4) 4 w -411t1' Paz, (1'14k 07411) (u CVRIfirar1l1 v nx ri EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 City of Denton Parks and Recreation Restroom and Concessions Improvements Initial Opinion of Probable Cost January 18, 2016 BLC Architecture North Lake 5 and Restrooms and Storage Subtotal of Trades Costs $252,097 Contractor's Overhead & Profit $37,815 Total Estimated Construction Cost $289,911 Miscellaneous Project Costs $28,794 Total Estimated Site Cost - North Lake 5 and 6 $318,705 Mack Concessions and Restrooms Subtotal of Trades Costs $271,497 Contractor's Overhead & Profit $40,725 Total Estimated Construction Cost $312,221 Miscellaneous Project Costs $30,355 Total Estimated Site Cost -Mack Concessions $342,577 North Lake 5 and Restrooms and Storage Subtotal of Trades Costs $206,494 Contractor's Overhead & Profit $30,974 Total Estimated Construction Cost $237,468 Miscellaneous Project Costs $24,473 Total Estimated Site Cost - Roberts Field $261,941 Total Estimated Project Cost $923,223 x 1. rc t G V`C".',` January 20, 2016 Date: Feb. 5, 2016 Mr. Herman Lawson Special Projects Manager City of Denton 809 South Woodrow Denton, Texas 76205 Report No.: 2016 -011 Re: City of Denton Parks and Recreation — Restroom /Storage /Concessions Buildings Initial Cost Estimate Assumptions and Clarifications Dear Mr. Lawson: Thank you for the opportunity to study the potential cost implications for designing and constructing new restroom /storage /concessions buildings for the Mack, North Lakes 5 and 6, and Roberts Fields facilities. As we discussed in our meeting of January 13, 2016, the City of Denton has received an estimated cost for construction of shop- fabricated facilities for these projects. The proposed facilities are of all- concrete construction built at the manufacturer's facilities to the Owner's needs and specifications and shipped and installed on the respective sites. The facilities are quite durable and designed to accommodate significant horizontal (wind) and vertical loads. The interior surfaces are painted or covered with fiberglass reinforced plastic panels (concessions area). Minimal site preparation is required for installation of these buildings. There are a number of manufacturers on the market capable of constructing similar facilities in their shops and delivering the finished buildings to the sites. It appears that each of the companies have proprietary approaches to the design and construction of these facilities, yet each likely is capable of meeting the city's needs. Yesterday, I provided to you preliminary cost estimates to site -build the facilities utilizing conventional construction techniques. This allows a number of local general contractors to build the facilities needed at each location. It is doubtful that most of the contractors have methods to be able to fabricate the structure at a central location and move them to various sites as needed. Therefore, it is very unlikely that general contractors will be able to compete against shop fabricated systems from a cost standpoint. The assumptions for consideration in comparing the shop- fabricated versus site - constructed facilities are as follows: • The manufacturers who utilize shop fabricated techniques generally develop modular construction systems. These systems take advantage of mass production techniques and equipment that minimal labor requirements. • The shop manufactured buildings likely can be moved to a different location if the need arises in the future. Site constructed facilities cannot be moved and utilized elsewhere. Date: Feb. 5, 2016 1r, Report No.: 2016 -011 BLC Architecture, PLLC 1945 Lilac Lane Grapevine„ "texas 76051 617 -906 -9160 blc- archltecture.ccm • The shop fabricated structures are capable of withstanding higher wind loadings at less cost than site fabricated structures. • The shop fabricated structures can be fabricated and placed in operation more quickly than comparable site constructed facilities. • Site constructed facilities are assumed to be of all masonry construction for the walls, slab -on -grade construction for the floor slabs, steel roof framing and decks, asphalt shingle roofing systems and the interiors painted with epoxy paint throughout. • Shop constructed facilities are all concrete construction, including the roof panels, and all surfaces painted with the exception of the concessions walls, which are fiberglass reinforced plastic panels. • No HVAC is anticipated other than heating for the accessible plumbing chase and basic ventilation for the restroom and concessions spaces. • Toilet partitions for the site constructed facilities are planned to be 6" concrete block, cells filled. • Exterior walls are assumed to be 8" concrete block backup with grout - filled cells for load bearing, and an exterior masonry veneer. • The mechanical, plumbing and electrical systems will be similar between the two types of construction methods. • The proposed construction for the site -built facilities was chosen to be equivalent in durability to the shop fabricated systems. • The site -built systems likely will be more costly than the shop fabricated systems. • For both systems, it is important to consider handicap access from the nearest handicap parking area. The cost estimates include approximately 200' of 5' -0" wide concrete sidewalk to help accommodate this requirement. No accessible means of access from other areas of the site are not considered beyond this item. • The cost estimates include some miscellaneous costs for construction contingency allowances, estimating allowances, general conditions, contractor overhead and profit, materials testing and design and engineering fees. W Date: Feb. 5,20|6 Report No.: 2016-011 We have an allowance of 30,000.00 for kitchen equipment. We can pull it out if it is not needed or if you would like it reduced. We are assuming the water, sewer, and electrical will all be located within 5 feet of the existing This price includes a concrete roof and Block building, so wind loads and durability would be the same as the precast buildings. RM1111 M11 11 IF ���� MINDMEMMA W-4 Please feel free to give me a call if you have any questions about this information. Sincerely, Barry L. Canning, AIA — Principal Date: Feb. 5, 2016 L1 � SUBTOTAL COSTS THIS PROJECT 1,800.0 BLDG /SITE /GC SQFT COST SITE S DATE: 4,500.0 SITE 0.00 PROJECT: OWNER: y/11 i FEE BLDG W /GC ADDRESS: OVERHEAD: i 6.00% TAX TOTAL 129,000.0 PROFIT: 6.00% TOTAL COSTS ,o 18,000.0 Report No.: 2016-011 PROPOSED CONTRACT BUILDERS RISK " YES GENERAL LIABILITY YES LENGTH OF PROJECT (days) 75.0 Phase IDescription I Notes I Budget $ jCostType ISUBCONTRACTOR 003116 -16- 1 Estimating Expense Shipping I I 500.0 022113- ISite Surveys 1,800.0 023216- - Material Testing 4,500.0 033000-- EXISTING CONDITIONS Cast in Place Concrete 36,000.0 042200-- CONCRETE Concrete Unit Masonry 129,000.0 053100- - MASONRY Metal Roof Decking 18,000.0 076200-- METALS Sheet Metal Flashing and Trim 39,950.0 081213- - THERMAL & MOISTURE Hollow Metal Frames & Doors 13,000.0 083323-- Overhead Coiling Doors 9,000.0 089100- - Louvers 2,200.0 089500-- Vents 1,500.0 099113- - OPENINGS Painting i, 25,000.0 102113 -13- FINISHES Metal Toilet Compartments 4,500.0 102813- - Toilet Accessories 1,500.0 102813 -10- Toilet Accessories Labor 1,500.0 104416- - Fire Extinguishers 600.0 119999- - SPECIALTIES Equipment Miscellaneous 30,000.0 129323- - EQUIPMENT Trash and Litter Receptors excluded 220000- - Plumbing 64,300.0 230000- - PLUMBING HVAC 30,250.0 260000- - HVAC% Electrical - 57,263.0 312316- - ELECTRICAL Excavation 15,000.0 329000- - EARTHWORK Landscape 6,000.0 EM 330000- - EXTERIOR Utilities excluded 501200- - Architectural 65,000.0 EXHIBIT 3 Date: Feb. 5, 2016 Report No.: 2016 -011 1 BLC Architecture Date: Feb. 5, 2016 Report No.: 2016 -011 Attachment #4 From: Scott Richter < scott @scottrichterconstruction.com> Sent: Monday, January 25, 2016 1:16 PM To: Mays, James M.; Donnell, Jason C Cc: Vorel, Emerson M.; Brock, Elton D Subject: Re: Restroom/Concession Files Jim. We went through this and we think these could be built for no more than that 757k number. How far under that would be determined by a lot of different variables that are not known till you get out there and do borings and go through the city permitting process. Thanks, Caliber Construction Inc Scott Richter 504 Chambers Denton Tx 76205 940 - 898 -8784 Office 940 -591 -0704 Fax Scott @scottrichterconstruction.com National Joint Powers A}liomoe : CXTIoc. Page } of EXHIBIT 4 Home -National Cooperative Contract Solutions Contracts `Gene=°Parksmnecr=oon,oXTInc. ",_W kn 06� ������, ����==RD C?W C""tr,ct4.022113-Cxr Category: Parks &Recreation Description: Athletic & Recreational Surfaces, Playgrounds and Equipment Concrete Buildings Maturity Date: 04p3/2u1r oncunc��nunu/nn,mannmcm�s��vo=`xm°� and m"o,mo"uunu/"n,amnamemmumn/eueuom^ o�~�° textures and colors. The roof and walls are fabricated with high strength precast concrete to meet all local Contract Documentation building codes and textured to match local architectural details. All CXT buildings are designed to meet A.D,A. and to withstand snow, wind and group I seismic design category E earthquakes. All concrete construction also pn"/"o makes the buildings easy to maintain and withstand the rigors of vandalism. The buildings are prefabricated and uex�eammp/e�onan*av'm-us=muumnon/ummnoanue/ecmo/wxe�ann//ome.w/,xtxuu,anu,� Marketing Materials satisfied customers nationwide, cmu the leader m prefabricated concrete re,tmum,. NJPA Contact Information HOW TO PURCHASE '^ ---------[�\ nm��+�*�»om�`�~' Vendor Contact Info Garyamoerwmiono/Sa/es Manager Direct Phone: moo>aoa'srsa u3450 ceo:(254)717-0912 aww.cxtinc,com Sales Direct Phone: ��6-s66 - ---EXHIBIT-4 ANNUAL RENEWAL OF AGREEMENT Made by and Between CT Inc. (Vendor) 3808 North Sullivan, Building 47 Spokane Valley, WA 99216 F =1 202 121b Street NE Staples, MN 5647.9 Phone.- (218) 894-1930 LYhereas: "Vendor" and "NIPA" have entered into an "Acceptance and Award #022113-CXP'for the procurement of Playground and Recreation Related Equipment, Accessories and Supplies, and having a maturity date of April 23, 2017, and which are subject to annual renewals at the option of both parties, Now therefore: "Vendor" and "NJPA" hereby and"Teriew the above defined contract for the period of April 2,3 ;YYI-5 LtA 0-13 NtttinnaLJ640 Poi 9 wia .05N By: (L—. Its- Executive Director/CE0 Im- LI-A its: All Name printed or typed: Date EXHIBIT 4 ANNUAL RENEWAL OF AGREEMENT Made by and BetvNeen CXT Inc. (Vendor) 3808 North Sullivan, Building #7 Spokane Valley, WA 99216 and National Joint Powers Alliance( (NJPA) 202 12" Street NE Staples, MN 56479 Phone.- (218) 894-1930 Whereas: "Vendor" and "NA'A" have entered into an "Acceptance and Award 4022113-CX'I"' fbr the procurement of Playground and Recreation Related riquipment, Accessories and Supplies, and having a maturity date or April 23, 2017, and which are subJect, to annual renewals at the option of both parties. Now therefore: "Vendoe'and "NJPA" hereby desire and agree to extend and renew the above defined contract for the period of April 23, 2014 to ri 2r(11w -,-----, "rational joint,' o1v pan teo- By: Its: Executive Director/CEO Name printed or Date By: Name printed or typed: r A (LM, I;z U 4z (0 f4t Date Its: V —ATj sjoA 50-19�t MAvA(.Qt 1�/ I .'If youdo not desire to extend contract, please sign below and return this agreement. Discontinue,, We desire to discontinue the contract. Date: gnature: ..... . ...... EXHIBIT 4 011 � A (To be completed only by NJPA) Proposer's full legal name National oint Powers Allia nce (NMIA) 11 1 Vendor Name Vendor Authorized signature: . . .......... . .... . ..... . . . .... . ...... . ... .................. .. . ... ...... . . ..... It (Name printed or typed) Title: A5,C, EXeCUted this day of 20, NJ PA Contract Number #022113 mmmm 44 Revision 1....7 -1.3 EXHIBIT 4 FORM D Formal Offering of Proposal (To be completed Only by Proposer) Company Name: CKT Date, Z - 17— - �,3 Company Address: -'A-> L4A v At o,-, i taped -7 Cit : SPU State: Contact Person . ........ G-R-..... . 5 ...,..C...-..I ............ Title: . ...... 5 Authorized Signature (ink only): (Name printed or typed) 43 Revilvion 1.- 7- 13 National Joint Powers Alliance (herein NJPA) REQUEST FOR PROPOSAL (herein RFP) for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT ACCESSORIES, AND SUPPLIES RFP Opening February 21, 2013 8:00 A.M. Central Time At the offices of the National Joint Powers Alliance® 20212 th Street Northeast, Staples, MN 56479 RFP #022113 The National Joint Powers Alliance® (NJPA), on behalf of NJPA and its current and potential Member agencies to include all Government, Higher Education, K12 Education, Non - Profit, and all other Public Agencies located nationally in all fifty states and potentially internationally, issues this Request For Proposal (RFP) to result in a national contract solution for the procurement of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Details of this RFP are available beginning January 9, 2013 and continuing until January 25, 2013. Details may be obtained by letter of request to Gregg Meierhofer, NJPA, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479, or by e -mail at RFP @njpacoop.org. Proposals will be received until February 20, 2013 at 4:30 p.m. Central Time at the above address and opened February 21, 2013 at 8:00 A.M. Central Time. Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 RFP Timeline January 9, 2013 Publication of RFP in the print and online Minneapolis Star Tribune, in the print and online Daily Journal of Commerce within the State of Oregon, the NJPA website, and on the website of noticetobidders.com January 25, 2013 Deadline for RFP requests January 29, 2013 Pre- Proposal Conference (webcast — conference call - Connection info 10 :00 A.M. Central Time sent to all inquirers two business days prior to the event) February 20, 2013 Deadline for Submission of Proposals 4:30 P.M. Central Time February 21, 2013 Public Opening of Proposals 8:00 A.M. Central Time Direct questions regarding this RFP to: Gregg Meierhofer at gregg.meierhofer@njpacoop. org or (218)894 -1930 2. 4. EXHIBIT 4 Methods and guidelines for submitting questions are detailed within the body of this document. TABLE OF CONTENTS INTRODUCTION A. About NJPA B. Joint Exercise of Powers Laws C. Why Respond to a National Cooperative Procurement Contract D. The Intent of This RFP E. Scope of This RFP F. Expectations for Equipment/Products and Services Being Proposed G. Solutions Based Solicitation H. Inquiry Period 1. Pre - Proposal Conference DEFINITIONS A. Proposer— Vendor B. Contract C. Time D. Proposer's Response E. Currency F. FOB INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. Pre - Proposal Conference B. Identification of Key Personnel C. Proposer's Exceptions to Terms and Conditions D. Formal Instructions to Proposers E. Questions and Answers About This RFP F. Modification or Withdrawal of a Submitted Proposal G. Value Added Attributes, Products /Services H. Certificate of Insurance I. Order Process and /or Funds Flow J. Administrative Fees PRICING STRATEGIES A. Line -Item Pricing B. Percentage Discount From Catalog or Category C. Hot List Pricing D. Ceiling Price E. Volume Price Discounts F. Sourced Product/Equipment /Open Market Items G. Cost Plus a Percentage of Cost H. Total Cost of Acquisition I. Requesting Product and Service Additions /Deletions J. Requesting Pricing Changes K. Price and Product Changes Format L. Single Statement of Pricing — Historical Record of Pricing M. Payment Terms 2 Revision 1 -7 -13 N. Sales Tax O. Shipping and Shipping Program P. Normal Working Hours 5. MARKETING PLAN 6. PROPOSAL OPENING PROCEDURE 7. EVALUATION OF PROPOSALS A. Proposal Evaluation Process B. Proposer Responsiveness C. Proposal Evaluation Criteria D. Other Consideration E. Cost Comparison F. Product Testing G. Past Performance Information H. Waiver of Formalities 8. POST AWARD OPERATING ISSUES A. Subsequent Agreements B. NJPA Member Sign -up Procedure C. Reporting of Sale Activity D. Audits E. Hub Partner F. Trade -Ins G. Out of Stock Notification H. Termination of a Contract resulting from this RFP 9. GENERAL TERMS AND CONDIITONS A. Advertisement of RFP B. Advertising a Contract Resulting From This RFP C. Applicable Law D. Assignment of Contract E. List of Proposers F. Captions, Headings, and Illustrations G. Data Practices H. Entire Agreement I. Force Majeure J. Gratuities K. Hazardous Substances L. Legal Remedies M. Licenses N. Material Suppliers and Sub - Contractors O. Non - Wavier of Rights P. Protests of Awards Made Q. Provisions Required by Law R. Right to Assurance S. Suspension or Disbarment Status T. Affirmative Action U. Severability V. Relationship of Parties 10. FORMS A, B, C, D, E,F,G &P 11. PRE - SUBMISSION CHECKLIST EXHIBIT 4 1. INTRODUCTION A. ABOUT NJPA 1_1 The National Joint Powers Alliance®- (NJPA)- is a public agency serving as a national municipal contracting agency established under the Service Cooperative statute by Minnesota Legislative Statute § 123A.21 with the authority to develop and offer, among other services, cooperative procurement services to its membership. Eligible membership and participation includes states, cities, counties, all government agencies, both public and non - public educational agencies, colleges, universities and non - profit organizations. 1_2 Under the authority of Minnesota state laws and enabling legislation, NJPA facilitates a competitive bidding and contracting process on behalf of the needs of itself and the needs of current and potential member agencies nationally. This process results in national procurement contracts with various Vendors of products /equipment and services which NJPA Member agencies desire to procure. These procurement contracts are created in compliance with applicable Minnesota Municipal Contracting Laws. A complete listing of NJPA cooperative procurement contracts can be found at http: / /www.njpacoop.org /contract -purchasing- sol „utiops /contracts,. 1_3 NJPA is a public agency governed by publicly elected officials that serve as the NJPA Board of Directors. NJPA's Board of Directors calls for all proposals, awards all Contracts, and hosts those resulting Contracts for the benefit of its own and its Members use. 1.3.1 Subject to Approval of the NJPA Board: NJPA contracts are awarded by the action of NJPA Board of Directors. This action is based on the open and competitive bidding process facilitated by NJPA. The evaluation and resulting recommendation is presented to the Board of Directors by the NJPA Proposal Evaluation Committee. 1_4 NJPA currently serves over 47,000 member agencies nationally. Both membership and utilization of NJPA contracts continue to expand, due in part to the increasing acceptance of Cooperative Purchasing throughout the government and education communities nationally. B. JOINT EXERCISE OF POWERS LAWS 1_5 NJPA cooperatively shares those contracts with its Members nationwide through various "Joint Exercise of Powers Laws” established in Minnesota and other States. The Minnesota "Joint Exercise of Powers Law" is Minnesota Statute §471.59 which states "Two or more governmental units ... may jointly or cooperatively exercise any power common to the contracting parties..." Similar Joint Exercise of Powers Laws exists within the laws of each State of the United States. This Minnesota Statute allows NJPA to serve Member agencies located in all other states. Municipal agencies nationally have the ability to participate in cooperative purchasing activities as a result of specific laws of their own state. These laws can be found on our website at http: / /www.nipacoop.org /contract- purchasing- solutions /legal- authority/ state - procurement,- re,S,o,urces. C. WHY RESPOND TO A NATIONAL COOPERATIVE PROCUREMENT CONTRACT 1_6 National Cooperative Procurement Contracts create value for Municipal and Public Agencies, as well as for Vendors of products /equipment and services in a variety of ways: 1.6.1 National cooperative contracts potentially save the time and effort of Municipal and Public Agencies who would have been otherwise charged with soliciting vendor responses to individual RFP's, resulting in individual contracts, to meet the procurement needs of their respective agencies. Considerable time and effort is also potentially saved by the Vendors who would have had to otherwise respond each of those individual RFPs. A single, nationally 3 Revision 1 -7 -13 EXHIBIT 4 advertised RFP, resulting in a single, national cooperative contract can potentially replace thousands of individual RFPs for the same products /services that might have been otherwise advertised by individual NJPA member agencies. 1.6.2 NJPA contracts offer our Members nationally leveraged volume purchasing discounts. Our contract terms and conditions offer the opportunity for Vendors to recognize individual member procurement volume commitment through additional volume based contract discounts. 1_7 State laws that permit or encourage cooperative purchasing contracts do so with the belief that cooperative efficiencies will result in lower prices, better overall value, and considerable time savings. 1_8 The collective purchasing power of thousands of NJPA Member agencies nationwide offers the opportunity for volume pricing discounts. Although no sales or sales volume is guaranteed by an NJPA Contract resulting from this RFP, substantial volume is anticipated and volume pricing is requested and justified. 1_9 NJPA and its Members desire the best value for their procurement dollar as well as a competitive price. Pre - competed procurement contracts offer NJPA and its Member agencies the ability to directly compare non -price factors in their procurement analysis. Vendors have the opportunity to display and highlight value added attributes of their company, equipment/products and services without constraints of a typical individual proposal process. D. THE INTENT OF THIS RFP 1.10. A national contract awarded by the NJPA Board of Directors: The intent of this RFP is to award a national contract by the action of the NJPA Board of Directors. This action will be influenced by the recommendation of the NJPA Proposal Evaluation Committee, and as a result of the competitive proposal and evaluation process which has been designed to reflect the best interests of NJPA and its Member agencies. NJPA is seeking the most responsive Vendor relationship(s) to meet this need. The goal and intent of this RFP is to follow through with an award and contract, which will be marketed nationally through a cooperative effort between the awarded vendor(s) and NJPA. 1.11 NJPA's primary intent is to establish and provide a national cooperative procurement contract, offering opportunities for NJPA and our Member agencies to procure quality product/equipment and services as desired and needed. Contracts are expected to offer price levels reflective of the potential and collective volume of NJPA and the nationally established NJPA membership base. 1.11.1 Beyond our primary intent, NJPA further desires to: • Award a four year term contract with a fifth year contract option resulting from this RFP; • Offer and apply any applicable technological advances throughout the term of a contract resulting from this RFP; • Deliver "Value Added" aspects of the company, equipment /products and services as defined in the "Proposer's Response "; • Deliver wide spectrums of solutions to meet the needs and requirement of NJPA and NJPA Member agencies. • Award an exclusive contract to the most responsive vendor when it is deemed to be in the best interest of NJPA and the NJPA Member agencies. 1.12 Non - Manufacturer Awards: NJPA reserves the right to make an award related to this invitation to a non - manufacturer or dealer /distributor if such action is in the best interests of NJPA and its Members. 4 Revision 1 -7 -13 EXHIBIT 4 1.13 Exclusive or Multiple Awards: Based on the goals and scope of this RFP, NJPA is requesting responders to demonstrate their ability to serve the needs of NJPA's national membership. It is NJPA's intent and desire to award a contract to a single exclusive Vendor to serve our membership's needs. To meet the goals of this RFP, NJPA reserves the right to award a Contract to multiple Proposers where the result of the responding Proposers justifies a multiple award and multiple contracts are deemed to be in the best interests of NJPA Member agencies. E. SCOPE OF THIS RFP 1.14 The scope, goal and intent of this RFP is to award a contract to a qualifying vendor defined as a manufacturer, provider, or dealer /distributor, established as a Proposer, and deemed responsive through our open and competitive proposal process. Vendors will be awarded contracts based on the proposal and responders demonstrated ability to meet the expectations of the RFP and demonstrate the overall highest valued solutions which meet and /or exceed the current and future needs and requirements of NJPA and its Member agencies nationally within the scope of PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES. Qualifying Proposers who are able to anticipate the current and future needs and requirements of NJPA and NJPA member agencies; demonstrate the knowledge of any and all applicable industry standards, laws and regulations; and possess the willingness and ability to distribute, market to and service NJPA Members in all 50 states are preferred. NJPA requests proposers submit their entire product line as it applies and relates to the scope of this RFP. All proposals deemed responsive will be evaluated based on their ability to provide the overall highest value to NJPA and NJPA Member agencies. One of the measures of overall highest value will be the proposed breadth and depth of products and services. 1.15 Best and Most Responsive — Responsible Proposer: It is the intent of NJPA to award a Contract to the best and most responsible and responsive Proposer(s) offering the best overall quality and selection of equipment/products and services meeting the commonly requested specifications of the NJPA and NJPA Members, provided the Proposer's Response has been submitted in accordance with the requirements of this RFP. 1.16 Sealed Proposals: NJPA will receive sealed proposal responses to this RFP in accordance with accepted standards set forth in the Minnesota Procurement Code and Uniform Municipal Contracting Law. Awards may be made to responsible and responsive Proposers whose proposals are determined in writing to be the most advantageous to NJPA and its current or qualifying future NJPA Member agencies. 1.17 Use of Contract: Any Contract resulting from this solicitation shall be awarded with the understanding that it is for the sole convenience of NJPA and its Members. NJPA and /or its members reserve the right to obtain like product /equipment and services solely from this Contract or from another contract source of their choice or from a contract resulting from their own procurement process. 1.18 NJPA's interest in a contract resulting from this RFP: Not withstanding its own use, to the extent NJPA issues this RFP and any resulting contract for the use of its Members, NJPA's interests and liability for said use shall be limited to the competitive proposal process performed and terms and conditions relating to said contract and shall not extend to the products, services, or warranties of the Awarded Vendor or the intended or unintended effects of the product/equipment and services procured there from. 1.19 Awarded Vendor's interest in a contract resulting from this RFP: Awarded Vendors will be able to offer to NJPA, and current and potential NJPA Members, only those products /equipment and services specifically awarded on their NJPA Awarded Contract(s). Awarded Vendors may not offer as "contract compliant ", products /equipment and services which are not specifically identified and priced in their NJPA Awarded Contract. 1.20 Sole Source of Responsibility- NJPA desires a "Sole Source of Responsibility" Vendor meaning the Vendor will take sole responsibility for the performance of delivered products /services. NJPA also desires sole responsibility with regard to: Revision 1 -7 -13 EXHIBIT 4 1.20.1 Scope of Products /Services: NJPA desires a provider for the broadest possible scope of products /equipment and services being proposed over the largest possible geographic area and to the largest possible cross - section of NJPA current and potential Members. 1.20.2 Vendor use of sub- contractors in sourcing or delivering product /equipment and services: NJPA desires a single source of responsibility for equipment /products and services proposed. Proposers are assumed to have sub - contractor relationships with all organizations and individuals whom are external to the Proposer and are involved in providing or delivering the product /equipment and services being proposed. Vendor assumes all responsibility for the equipment /products and services and actions of any such Sub - Contractor. 1.21 Additional Definitions for the scope of this solicitation. 1.21.1 In addition to PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES, this solicitation should be read to include, but not limited to: 1.21.1.1 N/A 1.21.2 NJPA reserves the right to limit the scope of this solicitation for NJPA and current and potential NJPA member agencies. 1.22 Suggested Solutions Options 1.22.1 All potential Proposers are assumed to be professionals in their respective fields. As professionals you are deemed to be intimately familiar with the spectrum of NJPA and NJPA Members' needs and requirements with respect to the scope of this RFP. 1.22.2 With this intimate knowledge of NJPA and NJPA Members' needs, Proposers are instructed to provide their proposal response in a format describing their solutions to those current and future needs and requirements. Proposers should take care to be economical in their response to this RFP. 1.22.3 Multiple solutions to the needs of NJPA and NJPA Members are possible. Examples could include: 1.22.3.lEquipment /Products Only Solution: Equipment /products Only Solution may be appropriate for situations where NJPA or NJPA Members possess the ability, either in- house or through local third party contractors, to properly install and bring to operation those equipment /products being proposed. 1.22.3.2 Turn -Key Solutions: A Turn -Key Solution is a combination of equipment /products and services which provides a single price for equipment/products, delivery, and installation to a properly operating status. Generally this is the most desirable solution as NJPA and NJPA Members may not possess, or desire to engage, personnel with the necessary expertise to complete these tasks internally or through other independent contractors 1.22.3.3 Good, Better, Best: Where appropriate and properly identified, Proposers are invited to offer the CHOICE of good — better — best multiple grade solutions to NJPA and NJPA Members' needs. 6 Revision 1 -7 -13 EXHIBIT 4 1.22.3.4 Proven — Accepted — Leading Edge Technology: Where appropriate and properly identified, Proposers are invited to provide an appropriate identified spectrum of technology solutions to compliment or enhance the functionality of the proposed solutions to NJPA and NJPA Members' needs both now and into the future. 1.23 Overlap of Scope: 1.23.1 When considering equipment, products, or groups of product /equipment and services submitted as a part of your response, and whether inclusion of such will fall within a "Scope of Proposal ", please consider the validity of an inverse statement. • For example, pencils and post -it -notes can generally be classified as office supplies and office supplies generally include pencils and post -it- notes. • In contrast, computers (PCs and peripherals) can generally be considered office supplies; however, the scope of office supplies does not generally include computer servers and infrastructure. • In conclusion: With this in mind, individual products and services must be examined individually by NJPA, from time to time and in its sole discretion, to determine their compliance and fall within the original "Scope" as intended by NJPA. 1.24 Geographic Area to be Proposed: This RFP invites proposals to provide PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to NJPA and NJPA Members throughout the entire United States and possibly internationally. Proposers will be expected to express willingness to explore service to NJPA Members located abroad; however the lack of ability to serve Members outside of the United States will not be cause for non - award. The ability and willingness to serve Canada, for instance, will be viewed as a value -added attribute. 1.25 Manufacturer as a Proposer: If the Proposer is a Manufacturer or wholesale distributor, the response received will be evaluated on the basis of a response made in conjunction with that Manufacturer's authorized Dealer Network. Unless stated otherwise, a Manufacturer or wholesale distributor Proposer is assumed to have a documented relationship with their Dealer Network where that Dealer Network is informed of, and authorized to accept, purchase orders pursuant to any Contract resulting from this RFP on behalf of the Manufacturer or wholesale distributor Proposer. Any such dealer will be considered a sub - contractor of the Proposer /Vendor. The relationship between the Manufacturer and wholesale distributor Proposer and its Dealer Network may be proposed at the time of the proposed submission if that fact is properly identified. 1.26 Dealer /Re- seller as a Proposer: If the Proposer is a dealer or re- seller of the products and /or services being proposed, the response will be evaluated based on the Proposer's authorization to provide those products and services from their manufacturer. Where appropriate, Proposers must document their authority to offer those products and /or services. 1.27 Contract Term: At NJPA's option a contract resulting from this RFP will become effective either; 1) The date awarded by the NJPA Board of Directors, or 2) The day following the expiration date of an existing NJPA procurement contract for the same or similar product/equipment and services. 1.27.1 NJPA is seeking a Contract base term of four years subject to annual renewals as allowed by Minnesota Contracting Law. Full term is expected, however will only occur through successful annual renewals. One additional one -year renewal- extension may be offered by NJPA to Vendor beyond the original four year term if NJPA deems such action to be in the best interests of NJPA and its Members. 7 Revision 1 -7 -13 EXHIBIT 4 1.28 Minimum Contract Value: NJPA anticipates considerable activity resulting from this RFP and subsequent award; however, no commitment of any kind is made concerning actual quantities to be acquired. NJPA does not guarantee usage. Usage will depend on the actual needs of the NJPA Members and the value of the awarded contract. 1.29 Estimated Contract Volume: Estimated quantities and sales volume are based on potential usage by NJPA and NJPA Member agencies nationally. 1.30 Largest Possible Solution: If applicable, Contracts will be awarded to Proposer(s) able to deliver a proposal meeting the entire needs of NJPA and its Members within the scope of this RFP. NJPA prefers Proposers submit their complete product line of products and services described in the scope of this RFP. NJPA reserves the right to reject individual, or groupings of specific equipment /products and services proposals as a part of the award. 1.31 Contract Availability: This Contract must be available to all current and potential NJPA Members who choose to utilize this NJPA Contract to include all governmental and public agencies, public and private primary and secondary education agencies, and all non - profit organizations nationally. 1.32 Proposer's Commitment Period: In order to allow NJPA the opportunity to evaluate each proposal thoroughly, NJPA requires any response to this solicitation be valid and irrevocable for ninety (90) days after the date proposals were opened regarding this RFP. F. EXPECTATIONS FOR EQUIPMENT /PRODUCTS AND SERVICES BEING PROPOSED 1.33 Industry Standards: Except as contained herein, the specifications or solutions for this RFP shall be those accepted guidelines set forth by the PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES industry, as they are generally understood and accepted within that industry across the nation. Submitted products /equipment, related services, and their warranties and assurances are required to meet and /or exceed all current, traditional and anticipated needs and requirements of NJPA and its Members. 1.33.1 Deviations from industry standards must be identified by the Proposer and explained how, in their opinion, the equipment /products and services they propose will render equivalent functionality, coverage, performance, and /or related services. Failure to detail all such deviations may comprise sufficient grounds for rejection of the entire proposal. 1.33.2 Technical Descriptions /Specifications. Proposers must supply sufficient information to: • Demonstrate the Proposer's knowledge of industry standards, and • Identify the equipment/products and services being proposed, and • Differentiate those products and services from others. Excessive technical descriptions and specifications which, in the opinion of NJPA unduly enlarge the proposal response may reduce evaluation points awarded on Form G. 1.34 Important note: NJPA does not typically provide product and service specifications; rather NJPA is requesting an industry standard or accepted specification for the requested product /equipment and services. Where specific line items are specified, those line items should be considered the minimum which can be expanded by the Proposer to deliver the Proposer's "Solution" to NJPA and NJPA Members' needs. 1.35 Commonly used Product /Equipment and Services: It is important that the equipment /products and services submitted are the equipment /products and services commonly used by public sector entities. Revision 1 -7 -13 EXHIBIT 4 1.36 New Current Model Product /Equipment: Proposals submitted shall be for new, current model products and services with the exception of certain close -out products allowed to be offered on the Proposer's "Hot List" described herein. 1.37 Compliance with laws and standards: All items supplied on this Contract shall comply with any current applicable safety or regulatory standards or codes. 1.38 Delivered and operational; Products /equipment offered herein are to be proposed based upon being delivered and operational at the NJPA Member's site. Exceptions to "delivered and operational" must be explicitly disclosed in the "Total Cost of Acquisition" section of your proposal response. 1.39 Warranty: The Proposer warrants that all products, equipment, supplies, and services delivered under this Contract shall be covered by the industry standard or better warranty. All products and equipment should carry a minimum industry standard manufacturer's warranty that includes materials and labor. The Proposer has the primary responsibility to submit product specific warranty as required and accepted by industry standards. Dealer /Distributors agree to assist the purchaser in reaching a solution in a dispute over warranty's terms with the manufacturer. Any manufacturer's warranty which is effective past the expiration of the warranty will be passed on to the NJPA member. Failure to submit a minimum warranty may result in non- award. 1.40 Proposer's Warrants: The Proposer warrants all products /equipment and related services furnished hereunder will be free from liens and encumbrances; defects in design, materials, and workmanship; and will conform in all respects to the terms of this RFP including any specifications or standards. In addition, Proposer /Vendor warrants the products /equipment and related services are suitable for and will perform in accordance with the purposes for which they were intended. G. SOLUTIONS BASED SOLICITATION 1.41 NJPA solicitations and contract process will not offer specific specifications for proposers to meet or base your response on. This RFP is a "Solutions Based Solicitation ". This means the proposers are asked to understand and anticipate the current and future needs of NJPA and the nationally located NJPA membership base, within the scope of this RFP, and including specifications commonly desired or required by law or industry standards. Your proposal will be evaluated in part on your demonstrated ability to meet or exceed the needs and requirements of NJPA and our member agencies within the defined scope of this RFP. H. INQUIRY PERIOD 1.42 The inquiry period shall begin at the date of first advertisement and continue to the "Deadline for Requests ". RFP packages shall be distributed to Potential Bidders during the inquiry period. The purpose for the defined "Inquiry Period" is to provide a finite group of Potential Bidders to invite to, and attend the pre -bid conference. I. PRE -BID CONFERENCE 1.43 All Potential Bidders inquiring during the inquiry period will be invited to the OPTIONAL "Pre -Bid Conference" via the e-mail address used to make their inquiry. The purpose of the pre -bid conference is to allow Potential Bidders to ask questions and hear answers from their own questions and the questions of other Potential Bidders. 2. DEFINITIONS A. PROPOSER - VENDOR 9 Revision 1 -7 -13 EXHIBIT 4 2_1 Exclusive Vendor- A sole Vendor awarded in a product category. NJPA reserves the right to award to an Exclusive Vendor in the event that such an award is in the best interests of NJPA Members nationally. A Proposer that exhibits and demonstrates the ability to offer and execute an outstanding overall program, demonstrates the ability and willingness to serve NJPA current and qualifying Members in all 50 states and comply with all other requirements of this RFP, is preferred. 2_2 Potential Proposer- A person or entity requesting a copy of this RFP. 2_3 Proposer- A company, person, or entity delivering a timely response to this RFP. 2_4 Vendor- One of a number of Proposers whose proposal has been awarded a contract pursuant to this RFP. 2_5 Request for Proposal- Herein referred to as RFP B.CONTRACT 2_6 "Contract" as used herein shall mean cumulative documentation consisting of this RFP, fully executed forms C, D, F & P from the Proposer's response pursuant to this RFP, and a fully executed form E, "Acceptance and Award" with final terms and conditions. Form E will be executed on or after award and will provide final clarification of terms and conditions of the award. C. TIME 2_7 Periods of time, stated as number of days, shall be in calendar days. D. PROPOSER'S RESPONSE 2_8 A Proposer's Response is the entire collection of documents as they are received by NJPA from a Potential Proposer in response to this RFP. E. CURRENCY F. FOB 2_9 All transactions are payable in U.S. dollars on U.S. sales. All administrative fees are to be paid in U.S. dollars. 2.10 FOB stands for "Freight On Board" and defines the point at which responsibility for loss and damage of product /equipment purchased is transferred from Seller to Buyer. "FOB Destination" defines that transfer of responsibility for loss is transferred from Seller to Buyer at the Buyer's designated delivery point. 2.11 FOB does not identify who is responsible for the costs of shipping. The responsibility for the costs of shipping is addressed elsewhere in this document. 3. INSTRUCTIONS FOR PREPARING YOUR PROPOSAL A. PRE - PROPOSAL CONFERENCE 3_1 A non - mandatory pre - proposal conference will be held at the date and time specified in the time line on page one of this RFP. Conference call and web connection information will be sent to all Potential 10 Revision 1 -7 -13 EXHIBIT 4 Proposers through the same means employed in their inquiry. The purpose of this conference call is to allow Potential Proposers to ask questions regarding this RFP. Only answers issued in writing by NJPA to questions asked before or during the Pre - proposal Conference shall be considered binding. B. IDENTIFICATION OF KEY PERSONNEL 3_2 Vendor will designate one senior staff individual who will represent the awarded Vendor to NJPA. This contact person will correspond with members for technical assistance, questions or problems that may arise including instructions regarding different contacts for different geographical areas as needed. 3_3 Individuals should also be identified (if applicable) as the primary contacts for the contents of this proposal, marketing, sales, and any other area deemed essential by the Proposer. C. PROPOSER'S EXCEPTIONS TO TERMS AND CONDITIONS 3_4 Any exceptions, deviations, or contingencies a Proposer may have to the terms and conditions contained herein must be documented on Form C. 3_5 Exceptions, deviations or contingencies stipulated in Proposer's Response, while possibly necessary in the view of the Proposer, may result in disqualification of a Proposal Response. D. FORMAL INSTRUCTIONS TO PROPOSERS 3_6 It is the responsibility of all Proposers to examine the entire RFP package, to seek clarification of any item or requirement that may not be clear and to check all responses for accuracy before submitting a Proposal. Negligence in preparing a Proposal confers no right of withdrawal after the deadline for submission of proposals. 3_7 All proposals must be sent to "The National Joint Powers Alliance®, 202 12th ST NE Staples, MN 56479." 3_8 Format for proposal response: All proposals must be physically delivered to NJPA at the above address in the following format: 3.8.1 Hard copy original signed, completed, and dated forms C,D,F,I, and hard copy signed signature page only from forms A and P from this RFP, 3.8.2 Hard copies of all addenda issued for the RFP with original counter signed by the Proposer, 3.8.3 Certificate of insurance verifying the coverage identified in this RFP, 3.8.4 Two complete copies of your response on a CD (Compact Disc) or flash drive. The first copy shall be identified as the "Evaluation Copy" and the second copy will be identified as the "Public Records" copy. Both copies shall contain completed Forms A,B,C,D,F & P, your statement of products and pricing together with all appropriate attachments, a copy of your audited financial statements from previous year end(or an unaudited copy if an audited copy is not available). However, your "Public Record Copy" shall have all "Trade Secret" information redacted. You will be responsible for citing specific legal authority for each redaction as identified herein. 3_9 All Proposal forms must be submitted in English and be legible. All appropriate forms must be executed by an authorized signatory of the Proposer. Blue ink is preferred for signatures. 3.10 Proposal submissions should be submitted using the electronic forms provided. If a Proposer chooses to use alternative documents for their response, the proposer will be responsible for ensuring the content is effectively equal to the NJPA form and the document is in a format readable by NJPA. 3.11 It is the responsibility of the Proposer to be certain the proposal submittal is in the physical possession of NJPA on or prior to the deadline for submission of proposals. 11 Revision 1 -7 -13 EXHIBIT 4 3.11.1 Proposals must be submitted in a sealed envelope or box properly addressed to NJPA and prominently identifying the proposal number, proposal category name, the message "Hold for Proposal Opening ", and the deadline for proposal submission. NJPA cannot be responsible for late receipt of proposals. Proposals received by the correct deadline for proposal submission will be opened and the name of each Proposer and other appropriate information will be publicly read. 3.12 Corrections, erasures, and interlineations on a Proposer's Response must be initialed by the authorized signer in original ink on all copies to be considered. 3.13 Addendums to the RFP: The Proposer is responsible for ensuring receipt of all addendums to this RFP. 3.13.1 Proposer's are responsible for checking directly with the NJPA website for addendums to this RFP. 3.13.2 Addendums to this RFP can change terms and conditions of the RFP including the deadline for submission of proposals. E. QUESTIONS AND ANSWERS ABOUT THIS RFP 3.14 Upon examination of this RFP document, Proposer shall promptly notify the NJPA of any ambiguity, inconsistency, or error they may discover. Interpretations, corrections and changes to this RFP will be made by NJPA through addendum. Interpretations, corrections, or changes made in any other manner will not be binding and Proposer shall not rely upon such. 3.15 Submit all questions about this RFP, in writing, referencing "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES to Gregg Meierhofer, NJPA 202 12th Street NE, Staples, MN 56479 or RFP @njpacoop.org. Those not having access to the Internet may call Gregg Meierhofer at (218) 894 -1930. Requests for additional information or interpretation of instructions to Proposers or technical specifications shall also be addressed to Gregg Meierhofer. NJPA urges Potential Proposers to communicate all concerns well in advance of the deadline to avoid misunderstandings. Questions received less than seven (7) days ending at 4:00 p.m. Central Time of the seventh (7`h) calendar day prior to proposal due -date cannot be answered. 3.16 If the answer to a question is deemed by NJPA to have a material impact on other potential proposers or the RFP itself, the answer to the question will become an addendum to this RFP. 3.17 If the answer to a question is deemed by NJPA to be a clarification of existing terms and conditions and does not have a material impact on other potential proposers or the RFP itself, no further documentation of that question is required. 3.18 As used in this solicitation, clarification means communication with a Potential Proposer for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the RFP. 3.19 Addenda are written instruments issued by NJPA that modify or interpret the RFP. All addenda issued by NJPA shall become a part of the RFP. Addenda will be delivered to all Potential Proposers using the same method of delivery of the original RFP material. NJPA accepts no liability in connection with the delivery of said materials. Copies of addenda will also be made available on the NJPA website at www.njpacoop.org by clicking on "Current and Pending Solicitations" and from the NJPA offices. No questions will be accepted by NJPA later than five (5) days prior to the deadline for receipt of proposals, except an addendum withdrawing the request for proposals or one that includes postponement of the date of receipt of proposals. Each Potential Proposer shall ascertain prior to submitting a Proposal that it has received all addenda issued, and the Proposer shall acknowledge their receipt in its Proposal Response. 3.20 An amendment to a submitted proposal must be in writing and delivered to NJPA no later than the 12 Revision 1 -7 -13 EXHIBIT 4 time specified for opening of all proposals. F. MODIFICATION OR WITHDRAWAL OF A SUBMITTED PROPOSAL 3.21 A submitted proposal may not be modified, withdrawn from or cancelled by the Proposer for a period of ninety (90) days following the date proposals were opened regarding this RFP. Prior to the deadline for submission of proposals, any proposal submitted may be modified or withdrawn by notice to the NJPA Manager of Bids and Contracts. Such notice shall be submitted in writing and include the signature of the Proposer and shall be delivered to NJPA prior to the deadline for submission of proposals and it shall be so worded as not to reveal the content of the original proposal. However, the original proposal shall not be physically returned to the Potential Proposer until after the official proposal opening. Withdrawn proposals may be resubmitted up to the time designated for the receipt of the proposals if they are then fully in conformance with the Instructions to Proposer. G. VALUE ADDED ATTRIBUTES, PRODUCTS /SERVICES 3.22 Examples of Value Added Attributes: Value -Added attributes, products and services are items offered in addition to the products and services being proposed which adds value to those items being proposed. The availability of a contract for maintenance or service after the initial sale, installation, and set -up may, for instance, be "Value Added Services" for products where a typical buyer may not have the ability to perform these functions. 3.23 Where to document Value Added Attributes: The opportunity to indicate value added dimensions and such advancements will be available in the Proposer's Questionnaire and Proposer's product and service submittal. 3.24 Value added equipment /products and services and expanded services, as they relate to this RFP, will be given positive consideration in the award selection. Consideration will be given to an expanded selection of "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", and advances to provide products /services, supplies meeting and /or exceeding today's industry standards and expectations. A value add would include a program or service that further serves the members needs above and possibly beyond standard expectation and complements the equipment /products and services and training. Value added could include areas of product and service, sales, ordering, delivery, performance, maintenance, technology, and service that furthers the functionality and effectiveness of the procurement process while remaining within the scope of this RFP. 3.25 Minority, Small Business, and Women Business Enterprise (WMBE) participation: It is the policy of some NJPA Members to involve Minority, Small Business, and WMBE contractors in the process to purchase product /equipment and related services. Vendors should document WMBE status for their organization AND any such status of their affiliates (i.e. Supplier networks) involved in carrying out the activities invited. The ability of a Proposer to provide "Credits" to NJPA and NJPA Members in these subject areas, either individually or through related entities involved in the transaction, will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. NJPA is committed to facilitating the realization of such "Credits" through certain structuring techniques for transactions resulting from this RFP. 3.26 Environmentally Preferred Purchasing Opportunities: There is a growing trend among NJPA Members to consider the environmental impact of the equipment /products and related services they purchase. "Green" characteristics demonstrated by responding companies will be evaluated positively by NJPA and reflected in the "value added" area of the evaluation. Please identify any Green characteristics of the product /equipment and related services in your proposal and identify the sanctioning body determining that characteristic. Where appropriate, please indicate which products have been certified as "green" and by which certifying agency. 13 Revision 1 -7 -13 EXHIBIT 4 3.27 On -Line Requisitioning systems: When applicable, on -line requisitioning systems will be viewed as a value -added characteristic. Proposer shall include documentation about user interfaces that make on- line ordering easy for NJPA Members as well as the ability to punch -out from mainstream e- Procurement or Enterprise Resource Planning (ERP) systems that NJPA Members may currently utilize. 3.28 Financing: The ability of the Proposer to provide financing options for the products and services being proposed will be viewed as a Value Added Attribute. H. CERTIFICATE OF INSURANCE 3.29 Proposer shall provide evidence of liability insurance coverage identified below in the form of an ACCORD binder form with their proposal. Upon Award issued pursuant to this contract, and prior to the execution of any commerce relating to such award, Vendor will be responsible for providing verification, in the form of an ACCORD binder identifying the coverage required below and identifying NJPA as a "Certificate Holder" and an "Additional Insured ". Vendor will be responsible to maintain such insurance coverage at their own expense throughout the term of any contract resulting from this solicitation. 3.30 Vendor, upon award, shall be required to maintain the following insurance coverage during the term of the NJPA Contract: (1) Workers Compensation insurance (Occurrence) with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. In addition, Proposer shall require all subcontractors occupying the premises or performing work under the contract to obtain an insurance certificate showing proof of Workers Compensation Coverage with the following minimum coverage: Bodily injury by accident - -per employee $100,000; Bodily injury by disease - -per employee $100,000; Policy limits $500,000. (2) Commercial General Liability Policy per occurrence $1,000,000. (3) Business Auto Policy to include but not be limited to liability coverage on any owned, non - owned and hired vehicle used by Proposer or Proposer's personnel in the performance of this Contract. The Business Automobile Policy shall have a per occurrence limit of $1,000,000. 3.31 The foregoing policies shall contain a provision that coverage afforded under the policies will not be canceled, or not renewed or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to NJPA. Certificates of Insurance showing such coverage to be in force shall be filed with NJPA prior to commencement of any work under the contract. The foregoing policies shall be obtained from insurance companies licensed to do business nationally and shall be with companies acceptable to NJPA, which must have a minimum AM Best rating of A -. All such coverage shall remain in full force and effect during the term and any renewal or extension thereof. I. ORDER PROCESS AND /OR FUNDS FLOW 3.32 Please propose an order process and funds flow. Please choose from one of the following: 3.32.1 B -TO -G: The Business -to- Government order process and /or funds flow model involves NJPA Members issuing Purchase Orders directly to a Vendor and pursuant to a Contract resulting from this RFP. 3.32.3 Other: Please fully identify. J. ADMINISTRATIVE FEES 3.33 Proposer agrees to authorize and /or allow for an administrative fee payable to NJPA by an Awarded Vendor in exchange for its facilitation and marketing of a Contract resulting from this RFP to current and potential NJPA Members. This Administration Fee shall be: 14 Revision 1 -7 -13 EXHIBIT 4 3.33.1 Calculated as a percentage of the dollar volume of all equipment /products and services provided to and purchased by NJPA Members or calculated as reasonable and acceptable method applicable to the contracted transaction, and 3.33.2 Included in, and not added to, the pricing included in Proposer's Response to this RFP, and 3.33.3 Designed to offset the anticipated costs of NJPA's involvement in contract management, facilitating marketing efforts, Vendor training, and any order processing tasks relating to the Contract resulting from this RFP. 3.33.3.1 Typical administrative fees for a B -TO -G order process and funds flow is 2.0 %. 3.34 The opportunity to propose these factors and an appropriate administrative fee is available in the Proposer's Questionnaire. 4. PRICING STRATEGIES 4_1 NJPA requests Potential Proposers respond to this RFP only if they are able to offer a wide array of equipment /products and services and at prices lower and better value than what they would ordinarily offer to single government agency, larger school district, or regional cooperative. 4_2 RFP is an "Indefinite Quantity Product /Equipment and Related Service Price and Program Request" with potential national sales distribution and service. Proposers are agreeing to fulfill Contract obligations regarding each product/equipment to which you provide a description and a price. If Proposer's solution requires additional supporting documentation, describe where it can be found in your submission. If Proposer offers the solution in an alternative fashion, describe your solution to be easily understood. All pricing must be copied on a CD along with other requested information as a part of a Proposer's Response. 4_3 Regardless of the payment method selected by NJPA or NJPA Member, a total cost associated with any purchase option of the equipment/products and services and being supplied must always be disclosed at the time of purchase. 4_4 Primary Pricing /Secondary Pricing Strategies- All Proposers will be required to submit "Primary Pricing" in the form of either "Line -Item Pricing," or "Percentage Discount from Catalog Pricing," or a combination of these pricing strategies. Proposers are also encouraged to offer OPTIONAL pricing strategies such as but not limited to "Hot List," "Sourced Product /Equipment" and "Volume Discounts," as well as financing options such as leasing. A. LINE -ITEM PRICING 4_5 Line -Item pricing- A pricing format where specific individual products and /or services are offered at specific individual Contract prices. Products /equipment and /or related services are individually priced and described by characteristics such as manufacture name, stock or part number, size, or functionality. This method of pricing offers the least amount of confusion as products /equipment and prices are individually identified however, Proposers with a large number of products /equipment to propose may find this method cumbersome. In these situations, a percentage discount from catalog or category pricing model may make more sense and increase the clarity of the contract pricing format. 4_6 All Line -Item Pricing items must be numbered, organized, sectioned, including SKU's (when applicable) and easily understood by the Evaluation Committee and members. 4_7 Line -Item Pricing items are to be submitted in an Excel spreadsheet format provided and are to include all appropriate identification information necessary to discern the line item from other line items 15 Revision 1 -7 -13 EXHIBIT 4 in each Responder's proposal. 4_8 The purpose for the excel spreadsheet format for Line -Item Pricing is to be able to use the "Find" function to quickly find any particular item of interest. For that reason, Proposers are responsible for providing the appropriate product and service identification information along with the pricing information which is typically found on an invoice or price quote for such products /equipment and related services. 4_9 All products /equipment and related services typically appearing on an invoice or price quote must be individually priced and identified on the line -item price sheet, including any and all ancillary costs. 4.10 Proposers are asked to provide both a published "List" price as well as a "Proposed Contract Price" in their pricing matrix. "The published List" price will be the standard "quantity of one" price currently available to government and educational customers excluding cooperative and volume discounts. B. PERCENTAGE DISCOUNT FROM CATALOG OR CATEGORY 4.11 Percent Discount From Catalog, list or Category Pricing- A specific percentage discount from a "Catalogue or List Price" defined as a published Manufacturer's Suggested Retail Price (MSRP) for the products /equipment or related services being proposed. 4.12 Individualized percentage discounts can be applied to any number of defined product groupings. 4.13 A Percentage Discount from MSRP may be applied to all elements identified in MSRP including all Manufacturer Options applicable to the product /equipment or related service. 4.14 Accessory options requested by the customer and related to the general scope of this RFP but are not under the current contract will be priced using a "Sourced Product /equipment pricing model" as defined herein. See Section F 4.15 When a Proposer elects to use "Percentage Discount from Catalog or Category," Proposer will be responsible for providing and maintaining current published "MSRP" with NJPA and must be included in their proposal and provided throughout the term of any Contract resulting from this RFP. 4.16 NJPA reserves the right to review catalogs submitted to determine if the represented products and services reflect and relate to the scope of this RFP. Each new catalog received may have the effect of adding new product offerings and deleting products no longer carried by the Vendor. New catalogs shall apply to the Contract only upon approval of the NJPA. Non - approved use of catalogs may result in termination for convenience. New price lists or catalogs found to be offering non - contract items during the Contract may be grounds for terminating the Contract for convenience. New optional accessories for product /equipment and related services may be added to the Contract through the NJPA approval process at the time they become available. C. HOT LIST PRICING 4.17 Where applicable, NJPA also invites the Vendor, at their option, to offer a specific selection of products /services, defined as a Hot List selection offer pricing at greater discounts or related advantages than those listed in the standard Contract pricing. All product /service pricing, including the Hot List Pricing, must be submitted electronically provided in Excel format. Hot List pricing must be submitted in a Line -Item format. Providing or offering a "Hot List Selection" of equipment /products and related services is optional. Equipment /products and related services may be added or removed from the "Hot List" at any time. 4.18 Hot List program and pricing when applicable may also be used to discount and liquidate close -out 16 Revision 1 -7 -13 EXHIBIT 4 and discontinued equipment/products and related services as long as those close -out and discontinued items are clearly labeled as such. Current ordering process and administrative fees apply. This option must be published and made available to all NJPA Members. 4.19 Hot List Program and Pricing is allowed to change at the discretion of the Vendor within the definition of Hot List Pricing. The Vendor is responsible to maintain current Hot List product/equipment and related service descriptions and Pricing with NJPA. D. CEILING PRICE 4.20 Proposal pricing is to be established as a ceiling price. At no time may the proposed equipment /products and related services be offered pursuant to this Contract at prices above this ceiling price without request and approval by NJPA. IMPORTANT NOTE: Contract prices may be reduced to allow for volume considerations and commitments and to meet the specific and unique needs of an NJPA Member. 4.21 Allowable specific needs may include competitive situations, certain purchase volume commitments or the creation of custom programs based on the individual needs of NJPA Members. E. VOLUME PRICE DISCOUNTS 4.22 Proposers are free to offer volume commitment discounts from the contract pricing documented in a Contract resulting from this RFP. Volume considerations shall be determined between the Vendor and individual NJPA Members on a case -by -case basis. 4.23 Nothing in this Contract establishes a favored member relationship between the NJPA or any NJPA Member and the Vendor. The Vendor will, upon request by NJPA Member, extend this same reduced price offered or delivered to another NJPA Member provided the same or similar volume commitment, specific needs, terms, and conditions, a similar time frame, seasonal considerations, locations, competitively situations and provided the same manufacturer support is available to the Vendor. 4.24 All price adjustments are to be offered equally to all NJPA Members exhibiting the same or substantially similar characteristics such as purchase volume commitments, and timing including the availability of special pricing from the Vendor's suppliers. F. SOURCED PRODUCT /EQUIPMENT /OPEN MARKET ITEMS 4.25 NJPA or NJPA Members may from time to time, request product/equipment and /or equipment/products and related services that are within the related scope of this RFP, which are not included in an awarded Vendor's line -item product /equipment and related service listing or "list or catalog ". These items are known as Sourced Product /Equipment or Open Market Items. 4.26 An awarded Vendor resulting from this RFP may "Source" equipment/products and related services for NJPA or an NJPA Member to the extent they: 4.26.1 Identify all such equipment, products and services as "Sources Product /Equipment " or "Open Market Items" on any quotation issued in reference to an NJPA awarded contract, and provided to either NJPA or an NJPA Member, and 4.26.2 All applicable acquisition regulations pertaining to the purchase of such equipment, products and services have been followed, as defined by NJPA or the NJPA Member receiving quotation from Vendor, and 4.26.3 NJPA or the NJPA Member has determined the prices as quoted by Vendor for such equipment, products and services are deemed to be fair and reasonable and are acceptable to the 17 Revision 1 -7 -13 EXHIBIT 4 member. G. COST PLUS A PERCENTAGE OF COST 4.27 Cost plus a percentage of cost as a primary pricing mechanism is not desirable. H. TOTAL COST OF ACQUISITION 4.28 The Total Cost of Acquisition for the equipment /products and related services being proposed, including those payable by NJPA Members to either the Proposer or a third party, shall be defined as: • The cost of the proposed equipment /products product/equipment and related services delivered and operational for its intended purpose in the end - user's location. 4.29 For example, if you are proposing equipment /products only (IE, FOB Proposer's dock) your proposal would identify your deviation from the "Total Cost of Acquisition" of contracted equipment /products. The "Proposal should reflect that the contract does not provide for delivery beyond Proposer's dock, nor any set -up activities or costs associated with those delivery or set -up activities." In contrast, proposed terms including all costs for product /equipment and services delivered and operational at to the end - user's location would require a disclosure of "None ". 1. REQUESTING PRODUCT /EQUIPMENT AND RELATED SERVICE ADDITIONS /DELETIONS 4.30 Requests for product /equipment and related services, price changes, additions, deletions, or any related contract changes must be made in written form and shall be subject to approval by NJPA. 4.31 New equipment /products and related services may be added to a Contract resulting from this RFP at any time during that Contract to the extent those equipment /products and related services are within the scope of this RFP. Those requests are subject to review and approval of NJPA. Allowable new equipment /products and related services generally include new updated models of equipment /products and related services and or enhanced services previously offered which could reflect new technology and improved functionality. 4.32 Proposers representing multiple manufacturers, or carrying multiple related product lines may also request the addition of new manufacturers or product lines to their Contract to the extent they remain within the scope of this RFP. 4.33 NJPA's due diligence in analyzing any request for change is to determine if approval of the request is 1) within the scope of the original RFP, and 2) in the "Best Interests of NJPA and NJPA Members." We are looking for consistent pricing and delivery mechanisms and an understanding of what value the proposal brings to NJPA and NJPA Members. 4.34 Documenting the "Best Interests of NJPA and NJPA Members" when outdated equipment is being deleted is fairly straight forward since the product is no longer available and not relevant to the procurement Contract. 4.35 Requests must be in the form of 1) a cover letter to NJPA a) asking to add the product /equipment line, b) making a general statement identifying how the products to be added are within the scope of the original RFP, and c) making a general statement identifying that, if appropriate, the pricing is consistent with the existing Contract pricing and 2) the detail as to what is being added at what price will then be an attachment to that cover letter. Pending approval of your request by NJPA you will need to provide a complete re- statement of all pricing including all new prices /products AND existing prices and products /equipment. 4.36 NJPA's intent is to encourage Proposers to provide and document NJPA's due diligence in a clear and concise one page format on which we can approve and sign our acknowledgment and acceptance. 18 Revision 1 -7 -13 EXHIBIT 4 This information must ultimately come from Proposers, and NJPA is requiring it in this format. J. REQUESTING PRICING CHANGES 4.37 Price Decreases: Requests for standard Contract price decrease adjustments (percentage discount increases) are encouraged and will be allowed at any time based on market place efficiencies, market place competitiveness, improved technologies and /or improved methods of delivery or if Vendor engages in innovative procurement practices such as strategic sourcing, aggregate and volume purchasing. NJPA expects Vendors to propose their very best prices and anticipates price reductions due to the advancement of technologies and market place efficiencies. Documenting the "Best Interests of NJPA and NJPA Members" is highly valued when we are documenting price reductions. 4.38 Price increases: Requests for standard contract price increases (or the inclusion of new generation products /equipment /services at higher prices) can be made at any time. These requests will again be evaluated by NJPA based on the best interests of NJPA and NJPA Members. As an example, typically acceptable requests for price increases for existing equipment/products and services may cite increases to the Vendor of input costs such as petroleum or other applicable commodities. Typically acceptable requests for price increases for new equipment /products and services enhance or improve on the current solutions currently offered as well as cite increases in utility of the new compared to the old. Vendors are requested to reasonably document the claims cited in their requests. Your written request for a price increase, therefore, is an exercise in describing what you need, and a justification for why you need it in sufficient detail for NJPA to deem such change to be in the best interests of ourselves and our Members. 4.39 Price Change Request Format: An awarded Proposer will use the format of a cover letter requesting price increases in general terms (a 5% increase in product line X) and stating their justification for that price increase (due to the recent increase in petroleum or raw material costs) by product category. Specific details for the requested price change must be attached to the request letter identifying product/services where appropriate, both current and proposed pricing. Attachments such as letters from suppliers announcing price increases are appropriate for documenting your requests here. K. PRICE AND PRODUCT CHANGES FORMAT 4.40 NJPA's due diligence regarding product and price change requests is to consider the reasonableness of the request and document consideration on behalf of our members. Submit the following documentation to request a pricing change: 4.40.1 A cover letter: a. Please address the following subjects in your cover letter: i. What product /equipment and related service prices are changing? ii. How much are the prices changing? iii. Why are the prices changing? iv. Any additions or deletions from the previous product /equipment and related services list and the reason for the changes. b. The specifics of the product /equipment and price changes will be listed in the excel spreadsheets identified below. Please take a more general "Disclosure" approach to identifying changes in the cover letter. i. If applicable and for example, indicate "All paper equipment /products and services increased 5 % in price due to transportation and fuel costs." ii. If applicable, for instance, indicate, "The 6400 series floor polisher added to the product list is the new model replacing the 5400 series. The 6400's 3% price increase reflects the rate of inflation over the past year. The 5400 series is now included in the "Hot List" at a 20% discount from previous pricing until remaining inventory is liquidated." 19 Revision 1 -7 -13 EXHIBIT 4 4.40.2 An excel spreadsheet identifying all equipment /products and services being offered and their pricing. Each subsequent pricing update will be saved using the naming convention of "(Vendor Name) pricing effective XX /XX /XXXX." a. Include all equipment /products and services regardless of whether their prices have changed. By observing this convention we will: i. Reduce confusion by providing a single, easy to find, current pricing sheet for each Vendor. ii. Create a historical record of pricing. L. SINGLE STATEMENT OF PRICING /HISTORICAL RECORD OF PRICING 4.41 Initially; and again with each request for product addition, deletion, and /or pricing change; you must state all pricing for all equipment /products and services available. The request for price changes described above will serve as the documentation for those requested changes. Each complete pricing list will be identified by its "Effective Date." Each successive price listing identified by its "Effective Date" will create a "Product and Price History" for the Contract. 4.42 Proposers may use the multiple tabs available in an Excel workbook to separately list logical product groupings or to separately list product and service pricing as they see fit. 4.43 All equipment/products and services together with their pricing, whether changed within the request or remaining unchanged, will be stated on each "Pricing" sheet created as a result of each request for product, service, or pricing change. 4.44 Each subsequent "Single Statement of Product and Pricing" will be archived by its effective date therefore creating a product and price history for any Contract resulting from this RFP. Proposers are required to create a historical record of pricing annually by submitting updated pricing referred to as a "Single Statement of Product/Equipment and Related Services Contract Price Update ". This pricing update is required at a minimum of once per contract year. M. PAYMENT TERMS 4.45 Payment terms will be defined by the Proposer in the Proposer's Response. Proposers are encouraged to offer payment terms through P Card services if applicable to the customary method of procurement relating to the contracted product /equipment and related services. 4.46 Leasing- If available, identify any leasing programs available to NJPA and NJPA Members as part of your proposal. Proposers should submit an example of the lease agreement to be used. Proposers should identify: • General leasing terms such as: • The percentage adjustment over /under an index rate used in calculating the internal rate of return for the lease; and • The index rate being adjusted; and • The "Purchase Option" at lease maturity ($1, or fair market value); and • The available term in months of lease(s) available. • Leasing company information such as: o The name and address of the leasing company; and o Any ownership, common ownership, or control between the Proposer and the Leasing Company. N. SALES TAX 4.47 Sales and other taxes, where applicable, shall not be included in the prices quoted. Vendor will charge state and local sales and other taxes on items for which a valid tax exemption certification has not been provided. Each NJPA Member is responsible for providing verification of tax exempt status to 20 Revision 1 -7 -13 EXHIBIT 4 Vendor. When ordering, if applicable, NJPA Members must indicate that they are tax exempt entities. Except as set forth herein, no party shall be responsible for taxes imposed on another party as a result of or arising from the transactions contemplated by a Contract resulting from this RFP. O. SHIPPING AND SHIPPING PROGRAM 4.48 Shipping program for material only proposals, or sections of proposals, must be defined as a part of the cost of product/equipment. If shipping is charged to NJPA or NJPA Member, only the actual cost of delivery may be added to an invoice. Shipping charges calculated as a percentage of the product price may not be used, unless such charges are lower than actual delivery charges. No COD orders will be accepted. It is desired that delivery be made within ninety -days (90) of receipt of the Purchase Order. See "The Total Cost of Acquisition" for the equipment /products and related services. 4.49 Any shipping cost charged to NJPA or NJPA Members will be considered to be part of "proposal pricing." 4.50 Additional costs for expedited deliveries will be at the additional shipping or handling expense to the NJPA Member. 4.51 Selection of a carrier for shipment will be the option of the party paying for said shipping. Use of another carrier will be at the expense of the requester. 4.52 Proposers must define their shipping programs for Alaska and Hawaii and any location not served by conventional shipping services. Over -size and over - weight items and shipments may be subject to custom freight programs. 4.53 Proposals containing restocking fees are less advantageous than those not containing re- stocking fees. That being said, certain industries cannot avoid restocking fees. Certain industries providing made to order product /equipment may not allow returns. With regard to returns and restocking fees, Proposers will be evaluated based on the relative flexibility extended to NJPA and NJPA Members relating to those subjects. Where used, restocking fees in excess of 15% will be considered excessive. Restocking fees may be waived, at the option of the Proposer /Vendor. Indicate all shipping and re- stocking fees in price program. 4.54 Proposer agrees shipping errors will be at the expense of the Vendor. For example, if a Vendor ships a product that was not ordered by the member, it is the responsibility of the Vendor to pay for return mail or shipment at the convenience of the member. 4.55 Unless specifically stated otherwise in the "Shipping Program" of a Proposer's Response, all prices quoted must be F.O.B. destination with the freight prepaid by the Vendor. Delivery effectiveness is very important aspect of this Contract. If completed deliveries are not made at the time agreed, NJPA or NJPA Member reserves the right to cancel and purchase elsewhere and hold Vendor accountable. If delivery dates cannot be met, Vendor agrees to advise NJPA or NJPA Member of the earliest possible shipping date for acceptance by NJPA or NJPA Member. 4.56 Delivered products /equipment must be properly packaged. Damaged products /equipment will not be accepted, or if the damage is not readily apparent at the time of delivery, the products /equipment product /equipment shall be returned at no cost to NJPA or NJPA Member. NJPA and NJPA Members reserve the right to inspect the product/equipment at a reasonable time subsequent to delivery where circumstances or conditions prevent effective inspection of the product/equipment at the time of delivery. 4.57 Vendor shall deliver Contract conforming products /equipment in each shipment and may not substitute products /equipment without approval from NJPA Member. 21 Revision 1 -7 -13 EXHIBIT 4 4.58 NJPA reserves the right to declare a breach of Contract if the Vendor intentionally delivers substandard or inferior products /equipment which are not under Contract and described in its paper or electronic price lists or sourced upon request to any member under this Contract. In the event of the delivery of a non- conforming product /equipment, NJPA Member will immediately notify Vendor and the Vendor will replace non - conforming product /equipment with conforming product /equipment acceptable to the NJPA member. 4.59 Throughout the term of the Contract, Proposer agrees to pay for return shipment on product /equipment that arrives in a defective or inoperable condition. Proposer must arrange for the return shipment of damaged product /equipment. 4.60 Unless contrary to other parts of this solicitation, if the product/equipment or the tender of delivery fail in any respect to conform to this Contract, the purchasing member may: 1) reject the whole, 2) accept the whole or 3) accept any commercial unit or units and reject the rest. P. NORMAL WORKING HOURS 4.61 Prices quoted are for equipment/products and services delivered during normal business hours. Normal Business hours will be as specifically defined herein, defined through industry standards OR defined through statement contained in the purchase /work order issued pursuant to a Contract resulting from this RFP. 5. MARKETING PLAN 5_1 Internal Marketing Plan: If you are awarded a contract based on this solicitation, your sales force will be the primary source of the contract success. Your sales force needs to be aware that the value of the contract includes: • The use of the NJPA Contract will save their customer (NJPA's Member) the time and effort of bringing a new individual Request For Proposal (RFP). • The use of the NJPA Contract will save you and your sales force the time and effort of responding to individual Request For Proposals (RFPs). • The use of the NJPA Contract will offer NJPA members the opportunity to have the ability to choose your company's contracted product /equipment and related services. An award of Contract resulting from this RFP is an opportunity for the awarded Vendor to pursue commerce with, and deliver valued contracted products /equipment and related service solutions to NJPA and NJPA Members nationwide. Your internal marketing plan should serve to: 5.1.1 Identify the appropriate levels of sales management whom will need to understand the value of, and the internal procedures necessary to deliver your Contract solution to NJPA and NJPA Members through your marketing and sales efforts. 5.1.2 Identify, in general, your national footprint and dedicated feet -on- the - street sales force that will be carrying this Contract message and opportunity in the field to NJPA Members. Outline the sale force network in terms of numbers and geographic location and distribution of the product/equipment and related services. Service may be independent of the sales of the product/ equipment. Demonstrate fully the sales and service capabilities of your company through your response. 5.1.2.1 Identify whether your sales force are employees or independent contractors. Identify whether your dealers are company owned or independently owned. 5.1.3 Identify your plan for delivering training to these individuals. 22 Revision 1 -7 -13 EXHIBIT 4 5.1.3.1 Will you have your sales force or dealer network gathered at national or regional events in the near future? Does you sales force or dealer network have the ability to participate in sales training webinar or webcast events? 5.1.3.2 NJPA is prepared to provide our personnel for sales training and /or on a webinar or webcast or other methodologies to effectively reach the appropriate groups within your sales management, dealer network and sales force. 5.1.4 Sales Management Contract Training. 5.1.4.1 NJPA will commit to providing contract sales training regarding all aspects of communicating the value of the Contract itself, the authority of NJPA to offer the Contract to its Members, the value the Contract delivers to NJPA Members, the scope of NJPA Membership, and the authority of NJPA Members to utilize NJPA procurement contracts. 5.1.4.2 Your Sales Management will be needed to provide training regarding employee compensation and internal procedures when delivering the Contract opportunity, and how this Contract purchasing opportunity relates with other such opportunities available. 5_2 Success in marketing is dependent upon 1) the delivery of value as defined in section 1.4, 2) the delivery of knowledge of the contract and its proper use and utility, and 3) the delivery of the contracted products /equipment and related services and the sales reward which creates a personal commitment to the contract. NJPA desires a marketing plan that: 5.2.1 identifies the value to a member of a delivered a competitively proposed national cooperative procurement contract that reduces the need by both the NJPA Member and the Vendor /Vendor's sales staff of the responsibility to facilitate and responding to multiple and similar individual RFP's; 5.2.2 identifies the appropriate Vendor personnel from both management and sales staff who will be trained on the sales and marketing methods, strategy, use and utility of such a contract and a general schedule of when and how those individuals will be trained; and 5.2.3 identifies in general how the reward system for the marketing, delivery, and service chain of the Vendor will be affected by the implementation of the proposed Contract and how that will be proposed to those individuals in terms of the value created for them and their departments in 5. 1.1 above. 5_3 External Marketing Plan: NJPA is seeking the ability to serve all our current and potential members nationwide. The Proposer must demonstrate the ability to both market and service their products /equipment and related services to NJPA current and potential members nationwide. As a part of your Marketing Plan, demonstrate your sales and service network and the capability to staff, communicate and offer the contract opportunity while demonstrating your commitment to serving NJPA and NJPA Members nationwide through the awarded contract. 5_4 The Proposer must exhibit the willingness and ability to develop marketing materials and participate in marketing venues such as: 5.4.1 Printed Marketing Materials. Proposer will initially produce and thereafter maintain full color print advertisements in camera ready electronic format including company logos, identifying the Vendor, the Vendor's general utility for NJPA and NJPA Members, and contact information to be used by NJPA and NJPA Members in a full page, half page, and quarter page formats. These advertisements will be used in the NJPA directory and other marketing publications. 23 Revision 1 -7 -13 EXHIBIT 4 5.4.2 Contract announcements and advertisements. Proposer will identify a marketing plan identifying their anticipated contract announcements, advertisements in industry periodicals, or other direct or indirect marketing activities. 5.4.3 Proposer's Website. Proposer will identify how an Awarded Contract will be displayed on the Proposer's website. An on -line shopping experience for NJPA and NJPA Members is desired when applicable and will be viewed as a value -added attribute to a Proposer's Response. 5.4.4 Trade Shows. Proposer will outline their proposed involvement in the promotion of a Contract resulting from this RFP through applicable trade shows. Proposers are encouraged to identify tradeshows and other appropriate venues for the promotion of any such Contract. Proposers are encouraged to consider participation with NJPA at NJPA embraced national trade shows. Examples of such could include: NAEP National Association of Education Procurement I -ASBO International Association of School Business Officials NIGP National Institute of Government Purchasing 5_5 Proposer must also work in cooperation with NJPA to develop a marketing strategy and provide avenues to equally market and drive sales through the Contract and program to all NJPA Members nationally. Awarded Vendor agrees to actively market in cooperation with NJPA all contracted equipment /products and services to current and potential NJPA Members. NJPA reserves the right to deem a Proposer non - responsive or to waive an award based on an unacceptable marketing plan. 5_6 As a part of this response, submit a complete Marketing Plan on how you would help NJPA roll out this program to current and potential NJPA Members. NJPA requires the Awarded Vendors actively promote the Contract in cooperation with the NJPA. Proposers are advised to consider marketing efforts in the areas of 1) Website Link from Proposer's website to NJPA's website, 2) Attendance and participation with a display booth at national and regional trade shows and meetings when the event is applicable to the Proposer's customer vertical, and 3) Sales team and sales training programs involving both Proposer's sales management and NJPA staff. 5_7 Facilitating NJPA Membership: Proposer should express their commitment to develop a process to establish membership status of current and potential agencies with NJPA as a part of the sales or customer communication process. 5.7.1 Membership information: Proposer should further express their commitment to capturing sufficient member information as is deemed necessary by NJPA to appropriately facilitate membership. 6. PROPOSAL OPENING PROCEDURE 6.1 Sealed and properly identified Proposer's Responses for this RFP entitled "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" will be received by Gregg Meierhofer, Manager of Bids and Contracts, at NJPA Offices, 202 12th Street NE, Staples, MN 56479 until the deadline for receipt of, and proposal opening identified on page one of this RFP. We document the receipt by using an atomic clock; an NJPA employee electronically time and date stamps all Proposals immediately upon receipt. The NJPA Director of Contracts and Marketing, or Representative from the NJPA Proposal Evaluation Committee, will then read the Proposer's names aloud. A summary of the responses to this RFP will be made available for public inspection in the NJPA office in Staples, MN. A letter or e-mail request is required to receive a complete RFP package. Send or communicate all requests to the attention of Gregg Meierhofer 202 12th Street Northeast Staples, MN 56479 or RFP @njpacoop.org to receive a complete copy of this RFP. Method of delivery needs to be 24 Revision 1 -7 -13 EXHIBIT 4 indicated in the request; an email address is required for electronic transmission. Oral, facsimile, telephone or telegraphic Proposal Submissions or requests for this RFP are invalid and will not receive consideration. All Proposal Responses must be submitted in a sealed package. The outside of the package shall plainly identify "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES" To avoid premature opening, it is the responsibility of the Proposer to label the Proposal Response properly. 7. EVALUATION OF PROPOSALS A. PROPOSAL EVALUATION PROCESS 7_1 Overall Evaluation (FORM G) - The NJPA Proposal Evaluation Committee will evaluate proposals received based on a 1,000 point evaluation system. The Committee will establish both the evaluation criteria and designate the relative importance of those criteria by assigning possible scores for each category. 7_2 NJPA will use a 1,000 Point Evaluation System to help determine the best overall Proposer(s) selection. Bonus points may be available for specific proposal characteristics identified such as "Green Product Certifications." 7.2.1. Bonus Evaluation Points- Bonus evaluation points may be awarded by the NJPA Proposal Evaluation Committee based on criteria identified as being both "optional" and "having additional value." 7_3 NJPA shall use a final overall scoring system to include consideration for best price and cost evaluation. The total possible score is 1,000 points. NJPA reserves the right to assign any number of point awards or penalties it considers warranted if a Proposer stipulates exceptions, exclusions, or limitations of liabilities. 7.4 Responses will be evaluated first for responsiveness and thereafter for content. The NJPA Board of Directors will make awards to the selected Proposer(s) based on the recommendations of the Proposal Evaluation Committee. 7_5 To qualify for the final evaluation, a Proposer must have been deemed responsive as a result of the criteria set forth under "Proposer Responsiveness." 7_6 NJPA uses a variety of evaluation methodologies, including but not limited to a cost comparison of specific and deemed to be like equipment /products. These processes establish final points for submitted price levels. 7_7 The procurement activities of the NJPA Proposal Evaluation Committee are limited to document preparation, answering Proposer questions, advertising the solicitation, distribution of this RFP upon request, conducting an evaluation and making recommendation for possible approval to NJPA Board of Directors. B. PROPOSER RESPONSIVENESS 7_8 Proposer's Response received after the deadline for submission will be invalid and returned to the Potential Proposer unopened. 7_9 An essential part of the proposal evaluation process is an evaluation to qualify the Proposer being considered. All proposals must contain answers or responses to the information requested in the proposal forms. Any Proposer failing to provide the required documentation may be considered non - responsive. 7.10 Deviations or exceptions stipulated in Proposer's Response may result in the proposal being classified as non - responsive. 25 Revision 1 -7 -13 EXHIBIT 4 7.11 To qualify for evaluation, a proposal must have been submitted on time and materially satisfy all mandatory requirements identified in this document. A proposal must reasonably and substantially conform to all the terms and conditions in the solicitation to be considered responsive. 7.12 The Proposal Evaluation Committee shall utilize the following criteria to evaluate all proposals received. Items 1 -4 constitute the test for "Level One Responsiveness" and are determined on the proposal opening date. "Level 2" responsiveness is determined through the evaluation of the remaining items listed under Proposal Evaluation Criteria. These items are not arranged in order of importance and each item may encompass multiple areas of information requested. 1. The proposal response is received prior to the deadline for submission. 2. The proposal package was properly addressed and identified as a sealed proposal with a specific opening date and time. 3. The proposal response contains the required certificate of liability insurance. 4. The proposal response contains original signatures on all documents requiring such. C. PROPOSAL EVALUATION CRITERIA 7.13 Reduction of Evaluation Points. The following items will be sufficient cause to reduce evaluation points. 7.13.1 If a manufacturer or supplier chooses not to produce or supply a full selection and representation of product /equipment and related services it has available which fall within the scope of this RFP, such action will be considered sufficient cause to reduce evaluation points. 7.14 Evaluation Criteria 7.15 Evaluation of each Proposer's Response will take into consideration as a minimum response but not necessarily limited to the following: 1. Adherence to all requirements of this RFP as defined by industry standards. 2. Prior knowledge of and experience with a Proposer in terms of past performance and market place success. 3. Capability of meeting or exceeding current and future needs or requirements of NJPA and NJPA Members. 4. Evaluation of Proposer's ability to market to and provide service to all NJPA Members nationally. 5. Financial condition of the Proposer. 6. Nature and extent of company data furnished in Proposer's Response. 7. Quality of products, equipment, and services offered including value added related services. 8. History of member service to NJPA type customers. 9. Overall ability to perform sales, solutions and contract support as submitted. 10. Ability to meet service and warranty needs. 11. History of meeting shipping and delivery expectations of contracted products/ services. 12. Technology advancements and related provisions. 13. Ability to market and promote the Contract within current business practices. 14. Willingness to develop and enter into NJPA Contract and business relations. 15. Favorable bond rating and applicable industry standard licensing ability. 16. Past market place successes and brand recognition. 17. Demonstrated warranty and product /service responsibility. 18. Possesses qualifications as a responding Proposer that meets or exceeds those set within the solicitation. 19. Information from government and education references and past performance information including past agency approval. 20. Demonstrates that they offer the most current industry standard equipment /products and related 26 Revision 1 -7 -13 EXHIBIT 4 services and /or services. 21. Demonstrates financial stability as a company and a favorable banking line of credit. 22. Demonstrates their equipment/products and related services proposed meet and /or exceed industry standards accepted by educational or governmental agencies nationally. 23. Demonstrates market place success and their past performance exhibits an acceptable reputation nationally within the government and education market place. 24. Demonstrates that the company possesses the background, knowledge, capacity, and ability to sell, deliver, and support equipment/products and related services offered to government and education and related agencies. 25. Response's conformance to terms and conditions as described in the solicitation, including documentation. 26. Has provided documentation defining, outlining, and describing their concept of a national marketing program they will be implementing to facilitate and coordinate the cooperative activities required by an awarded NJPA Contract. 27. Has provided all of the required and applicable documentation required i.e. insurance certificates, licenses, and /or registration certificates required to do business nationally. 28. Line -Item Pricing, or acceptable pricing model in approved excel format, listing of all of the proposed equipment /products and related services and warranty provisions with their associated units of costs. 29. Hot List Pricing equipment /products and related services in a Line -Item Pricing format (when applicable). 30. Contract Pricing submitted as requested to include selection of products /equipment and related services in a Line -Item Pricing and /or Percentage Discount from a published gov /ed price list or Catalog. D. OTHER CONSIDERATION 7.16 Consideration will be given in the award based on the completion and degree of information provided regarding available products /equipment, and accessories, and related services as well as, applicable parts of the Proposer Information and Questionnaire. 7.17 The Proposer is required to have extensive knowledge and at least three (3) years of experience with the related activities surrounding the selling of the product /equipment, related services or related products /equipment offered. 7.18 NJPA reserves the right to accept or reject newly formed companies solely based on information provided in the proposal and /or its own investigation of the company. 7.19 The fact a manufacturer or supplier chooses not to produce or provide equipment products or services to meet the intent and scope of this RFP will not be considered sufficient cause to adjudge this RFP as restrictive. 7.20 Consideration will be given in the proposal evaluation based upon the selection, variety, technological advances, and demonstrated quality of products submitted, technological advances, and pricing. A positive review will reflect the ability of the Proposer to communicate the value of these factors and to demonstrate how the depth and breadth of their product and service offerings provide NJPA and NJPA Members comfort and assurance understanding that the proposer accepts the sole source of responsibility of the response to the scope of this RFP. 7.21 Consideration will also be given to proposals demonstrating technological advances, provide increased efficiencies, expanded service and other related improvements beyond today's NJPA member's needs and applicable standards. 7.22 Strong consideration will be given to a Proposer's past performance, distribution model, and the 27 Revision 1 -7 -13 EXHIBIT 4 demonstration their ability to effectively market and service NJPA Membership nationally. 7.23 Strong consideration will be given to the best price as it relates to the quality of the product and service. However, price is ultimately only one of the factors taken into consideration in the evaluation and award. 7.24 The Proposer's ability to follow the proposal preparation instructions set forth in this solicitation will also be considered to be an indicator of the Proposer's ability to follow other future instructions should they receive an award as a result of this solicitation. Any Contract between NJPA and a Proposer requires the delivery of information and data. The quality of organization and writing reflected in the proposal will be considered an indication of the quality of organization and writing which would be prevalent if a Contract was awarded. As a result, the proposal will be evaluated as a sample of data submission. 7.25 Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available). The Proposer's audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) are requested and reviewed to get a general feel for the size, strength, and probable scope of the Proposer. 7.26 NJPA reserves the right to reject the Proposer's Response of the apparent successful Proposer where the available evidence or information does not exhibit the ability or intent to satisfy NJPA that the potential Vendor is unable to properly carry out the terms of this RFP and potential Contract. 7.27 NJPA shall reserve the right to reject any or all proposals. NJPA also reserves the right to reject a proposal not accompanied by required certificate of insurance, other data required by this RFP, or if a Proposer's Response is incomplete or irregular. The NJPA shall reject all proposals where there has been proven or suspicion of collusion among the Proposers. E. COST COMPARISON 7.28 NJPA reserves the right to use this process in the event the Proposal Evaluation Committee feels it is necessary to make a final determination. 7.29 This process will be based on a point system with points being awarded for being low to high Proposer for each cost evaluation item selected. A "Market Basket" of identical (or substantially similar) equipment /products and related services may be selected by the NJPA Evaluation Committee and the unit cost will be used as a basis for determining the point value. The "Market Basket" will be selected by NJPA from all product categories as determined appropriate by NJPA. The low priced Proposer will receive the full point value and all other Proposers will receive points as follows: Lowest price Proposal = 5 (where there are five proposers), and inferior proposals = 4, 3, 2, 1 points each. The Total Score for each proposer will be the sum of all points earned. The result of this process shall not be the sole determination for award. F. PRODUCT TESTING 7.30 NJPA reserves the right to request and test equipment/products and related services from the apparent successful Proposer. Prior to the award of the Contract, the apparent successful Proposer, if requested by NJPA, shall furnish current information and data regarding the Proposer's resources, personnel, and organization within three (3) days. G. PAST PERFORMANCE INFORMATION 7.31 Past performance information is relevant information regarding a Proposer's actions under previously awarded contracts to schools, local, state, and governmental agencies and non - profit agencies. It includes the Proposer's record of conforming to specifications and standards of good workmanship. The Proposer's history for reasonable and cooperative behavior and commitment to member satisfaction 28 Revision 1 -7 -13 EXHIBIT 4 shall be under evaluation. Ultimately, Past Performance Information can be defined as the Proposer's businesslike concern for the interests of the NJPA Member. H. WAIVER OF FORMALITIES 7.32 NJPA reserves the right to waive any minor formalities or irregularities in any proposal and to accept proposals, which, in its discretion and according to the law, may be in the best interest of its members. 8. POST AWARD OPERATING ISSUES A. SUBSEQUENT AGREEMENTS 8_1 Purchase Order- Purchase Orders for product/equipment and related services may be executed between NJPA or NJPA Members (Purchaser) and awarded Vendor(s) or Vendor's sub - contractors pursuant to this invitation and any resulting Contract. NJPA Members are instructed to identify on the face of such Purchase orders that "This purchase order is issued pursuant to NJPA procurement contract #XXXXXX." A Purchase Order is an offer to purchase product/equipment and related services at specified prices by NJPA or NJPA Members pursuant to a Contract resulting from this RFP. Purchase Order flow and procedure will be developed jointly between NJPA and an Awarded Vendor after an award is made. 8_2 Governing Law- Purchase Orders, as identified above, shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. Each and every provision of law and clause required by law to be included in the Purchase Order shall be read and enforced as though it were included. If through mistake or otherwise any such provision is not included, or is not currently included, then upon application of either part the Contract shall be physically amended to make such inclusion or correction. The venue for any litigation arising out of disputes related to Purchase Order(s) shall be a court of competent jurisdiction to the Purchaser. 8_3 Additional Terms and Conditions- Additional terms and conditions to a Purchase Order may be proposed by NJPA, NJPA Members, or Vendors. Acceptance of these additional terms and conditions is OPTIONAL to all parties to the Purchase Order. The purpose of these additional terms and conditions is to, among other things; formally introduce job or industry specific requirements of law such as prevailing wage legislation. Additional terms and conditions can include specific local policy requirements and standard business practices of the issuing Member. Said additional terms and conditions shall not interfere with the general purpose, intent or currently established terms and conditions contain in this RFP document. 8_4 Specialized Service Requirements- In the event service requirements or specialized performance requirements such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements not addressed in the Contract resulting from this RFP, NJPA Member and Vendor may enter into a separate, standalone agreement, apart from a Contract resulting from this RFP. Any proposed service requirements or specialized performance requirements require pre- approval by Vendor. Any separate agreement developed to address these specialized service or performance requirements is exclusively between the NJPA Member and Vendor. NJPA, its agents, Members and employees shall not be made party to any claim for breach of such agreement. Product sourcing is not considered a service. NJPA Members will need to conduct procurements for any specialized services not identified as a part or within the scope of the awarded Contract. 8_5 Performance Bond- At the request of the member, a Vendor will provide all performance bonds typically and customarily required in their industry. These bonds will be issued pursuant to the requirements of Purchase Orders for product /equipment and related services. If a purchase order is cancelled for lack of a required performance bond by the member agency, it shall be the recommendation of NJPA that the current pending Purchase Order be canceled. Each member has the final decision on 29 Revision 1 -7 -13 EXHIBIT 4 Purchase Order continuation. ANY PERFORMANCE BONDING REQUIRED BY THE MEMBER OR CUSTOMER STATE LAWS OR LOCAL POLICY IS TO BE MUTUALLY AGREED UPON AND SECURED BETWEEN THE VENDOR AND THE CUSTOMER /MEMBER. B. NJPA MEMBER SIGN -UP PROCEDURE 8_6 Awarded Vendors will be responsible for familiarizing their sales and service forces with the various forms of NJPA Membership documentation and shall encourage and assist potential Members in establishing Membership with NJPA. NJPA membership is at no cost, obligation or liability to the member or the vendor. C. REPORTING OF SALE ACTIVITY 8_7 A report of the total gross dollar volume of all equipment/products and related services purchased by NJPA Members as it applies to this RFP and Contract will be provided quarterly to NJPA. The form and content of this reporting will be developed by NJPA in cooperation with the Vendor to include, but not limited to, name and address of purchasing agency, amount of purchase, and a description of the items purchased. 8.7.1 Zero sales reports: Awarded Vendors are responsible for providing a quarterly sales report of contract sales EVERY QUARTER regardless of the existence or amount of sales. D. AUDITS 8_8 During the Term, however no more than once per calendar year, Vendor(s) may be required to make available to NJPA at the Vendor's corporate offices (during normal business hours) the invoice reports and /or invoice documents from Vendor pertaining to all invoices sent by Vendor and all payments made by NJPA members for all equipment /products and related services purchased under the awarded Contract. NJPA must provide written notice of exercise of this requirement with no less than fourteen (14) business days' notice. NJPA may employ an independent auditor or NJPA may choose to conduct such audit on its own behalf. Vendor shall have the right to approve the independent auditor, which approval shall not be unreasonably withheld. Upon approval and after the auditor has executed an appropriate confidentiality agreement, Vendor will permit the auditor to review the relevant Vendor documents. NJPA shall be responsible for paying the auditor's fees. The parties will make every reasonable effort to fairly and equitably resolve discrepancies to the satisfaction of both parties. Vendor agrees that the NJPA may audit their records with a reasonable notice to establish total compliance and to verify prices charged hereunder of the Contract are being met. Vendor agrees to provide verifiable documentation and tracking in a timely manner. E. HUB PARTNER 8_9 Hub Partner: Where applicable, NJPA Members may, from time to time, request to be served in some way through a "Hub Partner" for the purposes of complying with a Law, Regulation, or Rule to which that individual NJPA Member deems to be applicable in their jurisdiction. Hub Partners may bring value to the proposed transactions through consultancy, Disadvantaged Business Entity Credits, or other considerations. 8.10 Hub Partner Fees: Fees, costs, or expenses from this Hub Partner levied upon a transaction resulting from this contract, shall be payable by the NJPA Member provide that: 8.10.1 The fees, costs, or expenses levied by the Hub Vendor must be clearly itemized in the transaction; and 8.10.2 To the extent that the Vendor stands in the chain of title during a transaction resulting from 30 Revision 1 -7 -13 EXHIBIT 4 this RFP, the documentation shall be documented to show it is "Executed for the Benefit of [NJPA Member Name]." F. TRADE -INS 8.11 Where Appropriate, the value in US Dollars for Trade -ins will be negotiated between NJPA or an NJPA Member, and an Awarded Vendor. That identified "Trade -In" value shall be credited in full against the NJPA purchase price identified in a purchase order issued pursuant to any Awarded NJPA procurement contract. The full value of the trade -in will be consideration to that purchase order. G. OUT OF STOCK NOTIFICATION 8.12 Vendor shall immediately notify NJPA members upon receipt of order(s) when an out -of -stock occurs. Vendor shall inform the NJPA member regarding the anticipated date of availability for the out - of -stock item(s), and may suggest equivalent substitute(s). • The ordering organization shall have the option of accepting the suggested equivalent substitute, or canceling the item from the order. • Under no circumstance is Proposer permitted to make unauthorized substitutions. • Unfilled or substituted item(s) shall be indicated on the packing list. H. TERMINATION OF CONTRACT RESULTING FROM THIS RFP 8.13 NJPA reserves the right to cancel the whole or any part of a resulting Contract due to failure by the Vendor to carry out any obligation, term or condition as described in the below procedure. Prior to any termination for cause, the NJPA will provide written notice to the Vendor, opportunity to respond and opportunity to cure according to the steps in the procedure in this Cancellation Section. Some examples of material breach are the following: • The Vendor provides products /equipment or related services that does not meet reasonable quality standards and is not remedied under the warranty; • The Vendor fails to ship the products /equipment or related services or provide the delivery and services within a reasonable amount of time; • NJPA has reason to believe the Vendor will not or cannot perform to the requirements or expectations of the Contract and issues a request for assurance as described herein and Vendor fails to respond; • The Vendor fails to observe any of the material terms and conditions of the Contract; • The Vendor fails to follow the established procedure for purchase orders, invoices and /or receipt of funds as established by the NJPA and the Vendor in the Contract. • The Vendor fails to report quarterly sales ; • The Vendor fails to actively market this Contract within the guidelines provided in this RFP and the expectations of NJPA defined in the NJPA Contract Launch. • In the event the contract has no measurable and defining value or benefit to NJPA or the NJPA member. 8.14 Each party shall follow the below procedure if the Contract is to be terminated for violations or non - performance issues: Step 1: Issue a warning letter outlining the violations and /or non - performance and state the length of time (10 days) to provide a response and correct the problem(s) if reasonably possible in such time frame. Step 2: Issue a letter of intent to cancel Contract, if the problem(s) is not resolved within fifty (50) days. Step 3: Issue letter to cancel Contract for cause. 31 Revision 1 -7 -13 EXHIBIT 4 8.15 Upon receipt of the written notice of concern, the Vendor shall have ten (10) business days to provide a satisfactory response to the NJPA. Failure on the part of the Vendor to reasonably address all issues of concern may result in Contract cancellation pursuant to this Section. 8.16 Any termination shall have no effect on purchases that are in progress at the time the cancellation is received by the NJPA. The NJPA reserves the right to cancel the Contract immediately for convenience, without penalty or recourse, in the event the Vendor is not responsive concerning the remedy, the performance, or the violation issue within the time frame, completely or in part. 8.17 NJPA reserves the right to cancel or suspend the use of any Contract resulting from this RFP if the Vendor files for bankruptcy protection or is acquired by an independent third party. Prior to commencing services under this Contract, the Proposer /Vendor must furnish NJPA certification from insurer(s) proving level of coverage usual and customary to the specific industry. The coverage is to be maintained in full effect during the Contract period. Vendor must be willing to provide, upon request, certification of insurance to any NJPA member or member using this Contract. 8.18 Either party may execute Contract termination without cause with a required 60 -day written notice of termination. Termination of Contract shall not relieve either party of financial, product or service obligations incurred or accrued prior to termination. 8.19 NJPA may cancel any Contract resulting from this solicitation without any further obligation if any NJPA employee significantly involved in initiating, negotiating, securing, drafting or creating the Contract on behalf of the NJPA is found to be in collusion with any Proposer to this RFP for their personal gain. Such cancellation shall be effective upon written notice from the NJPA or a later date if so designated in the notice given. A terminated Contract shall not relieve either party of financial, product or service obligations due to participating member or NJPA. 8.20 Events of Automatic termination to include; Vendor's or NJPA's voluntary or involuntary bankruptcy or insolvency; Vendor's failure to remedy a material breach of a Contract resulting from this RFP within sixty (60) days of receipt of notice from NJPA specifying in reasonable detail the nature of such breach; and /or, Receipt of written information from any authorized agency finding activities of Vendors engaged in pursuant to a Contract resulting from this RFP to be in violation of the law. 9. GENERAL TERMS AND CONDITIONS A. ADVERTISEMENT OF RFP 9_1 As a policy, NJPA shall advertise this solicitation 1) for two consecutive weeks in both the hard copy print and on -line editions of the MINNEAPOLIS STAR TRIBUNE, 2) for two consecutive weeks in both the hard copy print and on -line editions of Oregon's Daily Journal of Commerce, 3) it shall be placed on a national wire service and website by the MINNEAPOLIS STAR TRIBUNE, 4) it shall be posted on NJPA's website, 5) it shall be posted to the "Noticetobidders.com" website, and 6) it shall be posted to other third -party websites deemed appropriate by NJPA. Other third party advertisers may include Onvia and Bidsync. NJPA also notifies and provides solicitation documentation to each State level procurement departments for possible re- posting of the solicitation within their systems and at their option for future use and to meet specific state requirements. B. ADVERTISING OF A CONTRACT RESULTING FROM THIS RFP 9_2 Proposer /Vendor shall not advertise or publish information concerning this Contract prior to the 32 Revision 1 -7 -13 EXHIBIT 4 award being announced by the NJPA. Once the award is made, a Vendor is expected to advertise the awarded Contract to both current and potential NJPA Members. C. APPLICABLE LAW 9_3 NJPA Compliance with Minnesota Procurement Law: Contracts awarded through NJPA are intended to meet the procurement laws of all states and NJPA will exhaust all avenues to comply with each unique state law or requirement whenever possible. It is the responsibility of each participating NJPA member to ensure to their satisfaction that NJPA contracting process falls within these laws and applicable laws are satisfied. An individual NJPA member using these contracts is deemed by their own accord to be in compliance with their own requirements and procurement regulations. 9_4 Governing Law with respect to delivery and acceptance: All applicable portions of the Minnesota Uniform Commercial Code, all other applicable Minnesota laws, and the applicable laws and rules of delivery and inspection of the Federal Acquisition Regulations (FAR) laws shall govern NJPA contracts resulting from this solicitation. 9_5 Jurisdiction: Any claims pertaining to this RFP and any resulting Contract that develop between NJPA and any other party must be brought forth only in courts in Todd County in the State of Minnesota. 9.5.1 Purchase Orders issued pursuant to a contract resulting from this solicitation shall be construed in accordance with, and governed by, the laws of a competent jurisdiction with respect to the purchaser. 9_6 Vendor Compliance with applicable law: Vendor(s) shall comply with all federal, state, or local laws applicable to or pertaining to the transaction, acquisition, manufacturer, suppliers or the sale of the equipment/products and relating services resulting from this RFP. 9_7 Applicable Laws, whether or not herein contained, shall be included by this reference. It shall be Proposer's /Vendor's responsibility to determine the applicability and requirements of any such laws and to abide by them. 9_8 Indemnity: Each party agrees it will be responsible for its own acts and the result thereof to the extent authorized by law and shall not be responsible for the acts of the other party and the results thereof. NJPA's liability shall be governed by the provisions of the Minnesota Tort Claims Act, Minnesota Statutes, Section §3.736, and other applicable law. 9_9 Prevailing Wage: It shall be the responsibility of the Vendor to comply, when applicable, with prevailing wage legislation in effect in the jurisdiction of the purchaser (NJPA or NJPA Member). It shall be the responsibility of the Vendor to monitor the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of this Contract and adjust wage rates accordingly. 9.10 Patent and Copyright infringement: If an article sold and delivered to NJPA or NJPA Members hereunder shall be protected by any applicable patent or copyright, the Vendor agrees to indemnify and save harmless NJPA and NJPA Members against any and all suits, claims, judgments, and costs instituted or recovered against it by any person whosoever on account of the use or sale of such articles by NJPA or NJPA Members in violation or right under such patent or copyright. D. ASSIGNMENT OF CONTRACT 9.11 No right or interest in this Contract shall be assigned or transferred by the Vendor without prior written permission by the NJPA. No delegation of any duty of the Vendor shall be made without prior written permission of the NJPA. The NJPA shall notify the members within fifteen (15) days of receipt of written notice by the Vendor. After issuance the awarded Contract may be reassigned to a comparable 33 Revision 1 -7 -13 EXHIBIT 4 and acceptable Vendor at the discretion of NJPA. 9.12 If the original Vendor sells or transfers all assets or the entire portion of the assets used to perform this Contract, a successor in interest must guarantee to perform all obligations under this Contract. NJPA reserves the right to reject the acquiring person or entity as a Vendor. A simple change of name agreement will not change the contractual obligations of the Vendor. E. LIST OF PROPOSERS 9.13 NJPA will not maintain or communicate to a list of proposers. All interested proposers must respond to the solicitation as a result of NJPA solicitation advertisements indicated. Because of the wide scope of the potential Members and qualified national Vendors, NJPA has determined this to be the best method of fairly soliciting proposals. F. CAPTIONS, HEADINGS, AND ILLUSTRATIONS 9.14 The captions, illustrations, headings, and subheadings in this solicitation are for convenience and ease of understanding and in no way define or limit the scope or intent of this request. G. DATA PRACTICES 9.15 All materials submitted in response to this RFP will become property of the NJPA and will become public record in accordance with Minnesota Statutes, section 13.591, after the evaluation process is completed. If the Responder submits information in response to this RFP that it believes to be trade secret materials, as defined by the Minnesota Government Data Practices Act, Minnesota Statute § 13.37, the Responder must: • clearly mark all trade secret materials in its response at the time the response is submitted, • include a statement with its response justifying the trade secret designation for each item, and • defend any action seeking release of the materials it believes to be trade secret, and indemnify and hold harmless the NJPA, its agents and employees, from any judgments or damages awarded against the NJPA in favor of the party requesting the materials, and any and all costs connected with that defense. This indemnification survives the NJPA's award of a contract. In submitting a response to this RFP, the Responder agrees that this indemnification survives as long as the trade secret materials are in possession of the NJPA. Proposer can redact additional confidential information at any time after the evaluation process if appropriate legal justification is provided. H. ENTIRE AGREEMENT 9.16 The Contract, as defined herein, shall constitute the entire understanding between the parties to that Contract. 9.17 A Contract resulting from this RFP is formed when the NJPA Board of Directors approves and signs the applicable Contract Award Form document (see Form E). 1. FORCE MAJEURE 9.18 Except for payments of sums due, neither party shall be liable to the other nor deemed in default under this Contract if and to the extent that such party's performance of this Contract is prevented due to force majeure. The term "force majeure" means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence including, but not limited to, the following: acts of 34 Revision 1 -7 -13 EXHIBIT 4 God, acts of the public enemy, war, riots, strikes, mobilization, labor disputes, civil disorders, fire, flood, snow, earthquakes, tornadoes or violent wind, tsunamis, wind shears, squalls, Chinooks, blizzards, hail storms, volcanic eruptions, meteor strikes, famine, sink holes, avalanches, lockouts, injunctions - intervention -acts, terrorist events or failures or refusals to act by government authority and /or other similar occurrences where such party is unable to prevent by exercising reasonable diligence. The force majeure shall be deemed to commence when the party declaring force majeure notifies the other party of the existence of the force majeure and shall be deemed to continue as long as the results or effects of the force majeure prevent the party from resuming performance in accordance with a Contract resulting from this RFP. Force majeure shall not include late deliveries of equipment /products and services caused by congestion at a manufacturer's plant or elsewhere, an oversold condition of the market, inefficiencies, or other similar occurrences. If either party is delayed at any time by force majeure, then the delayed party shall notify the other party of such delay within forty-eight (48) hours. J. GRATUITIES 9.19 NJPA may cancel an awarded Contract by written notice if it is found that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Vendor or any agent or representative of the Vendor, to any employee of the NJPA are deemed to be excessive with a view or demonstrated intent toward securing a contract or with respect to the performance of a pending or awarded Contract. K. HAZARDOUS SUBSTANCES 9.20 Proper and applicable Material Safety Data Sheets (MSDS) that are in full compliance with OSHA's Hazard Communication Standard must be provided by the Vendor to NJPA or NJPA Member at the time of purchase. L. LEGAL REMEDIES 9.21 All claims and controversies between NJPA and Vendor shall be subject to the laws of the State of Minnesota and are to be resolved in Todd County, Minnesota, the county in which NJPA is located and domiciled. M. LICENSES 9.22 Proposer shall maintain a current status on all required federal, state, and local licenses, bonds and permits required for the operation of the business that is anticipated to be conducted with NJPA and NJPA members by the Proposer. 9.23 All responding Proposers must be licensed (where required) and have the authority to sell and distribute offered equipment /products and related services to NJPA and NJPA Members nationally. Documentation of required said licenses and authorities, if applicable, is requested to be included in the proposer's response. N. MATERIAL SUPPLIERS AND SUB - CONTRACTORS 9.24 The awarded Vendor shall be required to supply the names and addresses of sourcing suppliers and sub - contractors as a part of the purchase order when requested by NJPA or the NJPA member. 9.25 Awarded Vendors under this RFP will be the sole source of responsibility for transactions originating that award. The Awarded Vendor is solely responsible for equipment/products and related services and products /equipment and related services provided by third -party sourcing or service providers. 0. NON - WAIVER OF RIGHTS 35 Revision 1 -7 -13 EXHIBIT 4 9.26 No failure of either party to exercise any power given to it hereunder, nor to insistence upon strict compliance by the other party with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof, nor any payment under a Contract resulting from this RFP shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. Failure by NJPA to take action or assert any right hereunder shall not be deemed as waiver of such right. P. PROTESTS OF AWARDS MADE 9.27 Protests shall be filed with the NJPA's Executive Director and shall be resolved in accordance with appropriate Minnesota state statutes. Protests will only be accepted from Proposers. A protest must be in writing and filed with NJPA. A protest of an award or proposed award must be filed within ten (10) days after the public notice or announcement of the award. No protest shall lie for a claim that the selected Proposer is not a responsible Proposer. A protest must include: 1. The name, address and telephone number of the protester; 2. The original signature of the protester or its representative (you must document the authority of the Representative); 3. Identification of the solicitation by RFP number; 4. Identification of the statute or procedure that is alleged to have been violated; 5. A precise statement of the relevant facts; 6. Identification of the issues to be resolved; 7. The aggrieved party's argument and supporting documentation; 8. The aggrieved party's statement of potential financial damages; 9. A protest bond in the name of NJPA and in the amount of 10% of the aggrieved party's statement of potential financial damages. Q. PROVISIONS REQUIRED BY LAW 9.28 Proposer agrees in the performance of a Contract resulting from this RFP, it has complied with or will comply with all applicable statutes, laws, regulations, and orders of the United States and any State thereof. R. RIGHT TO ASSURANCE 9.29 Whenever one party to the awarded Contract has reason to question the other party's intent to perform, he /she may demand a written assurance of this intent. In the event a demand is made and no written assurance is given, the demanding party may treat this failure as an anticipatory repudiation of the Contract provided, however, in order to be effective, any such demand shall be addressed to the authorized signer for the party from whom the assurance is being sought, and sent via U.S. Postal Service, certified mail, return receipt requested or national overnight delivery service with proof of delivery. S. SUSPENSION OR DISBARMENT STATUS 9.30 If within the past five (5) years, any firm, business, person or Proposer responding to NJPA solicitation and submitting a proposal has been lawfully terminated, suspended or precluded from participating in any public procurement activity with a federal, state or local government or education agency the Proposer must include a letter with its response setting forth the name and address of the public procurement unit, the effective date of the suspension or debarment, the duration of the suspension or debarment and the relevant circumstances relating to the suspension or debarment. Any failure to supply such a letter or to disclose pertinent information may result in the cancellation of any Contract. By signing the proposal affidavit, the Proposer certifies that no current suspension or debarment exists. T. AFFIRMATIVE ACTION AND IMMIGRATION STATUS CERTIFICATION 36 Revision 1 -7 -13 EXHIBIT 4 9.31 An Affirmative Action Plan, Certificate of Affirmative Action or other documentation regarding Affirmative Action may be required by certain Members may be required by NJPA' or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. 9.32 Immigration Status Certification may be required by NJPA or NJPA Members relating to a transaction relating to this RFP. Vendors shall comply with any such requirements or requests. U. SEVERABILITY 9.32 In the event that any of the terms of a Contract resulting from this RFP are in conflict with any rule, law, statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from an awarded Contract resulting from this RFP, but such invalidity or unenforceability shall not invalidate any of the other terms of an awarded Contract resulting from this RFP. V. RELATIONSHIP OF PARTIES 9.33 No Contract resulting from this RFP shall be considered a contract of employment. The relationship between NJPA and an Awarded Contractor is one of independent contractors each free to exercise judgment and discretion with regard to the conduct of their respective businesses. The parties do not intend the proposed Contract to create, or is to be construed as creating a partnership, joint venture, master - servant, principal— agent, or any other relationship. Except as provided elsewhere in this RFP, neither party may be held liable for acts of omission or commission of the other party and neither party is authorized or has the power to obligate the other party by contract, agreement, warranty, representation or otherwise in any manner whatsoever except as may be expressly provided herein. 10. FORMS [THE REST OF THIS PAGE WAS LEFT INTENTIONALLY BLANK. FORMS BEGIN ON NEXT PAGE] 37 Revision 1 -7 -13 EXHIBIT 4 Form A r�1:11�1� "�� PROPOSER QUESTIONNAIRE- General Business Information (Products, Pricing, Sector Specific, Services, Terms and Warranty are addressed on Form P Proposer Name: Questionnaire completed by: Please provide an answer to all questions below and address all requests made in this RFP. Please use the Microsoft Word /Excel document version of this questionnaire to respond to the questions contained herein. Please provide your answer to each question indented below the question. Please supply any applicable supporting information and documentation you feel appropriate in addition to answers entered to the Word document. All information must be typed, organized, and easily understood by evaluators. Company Information 1) Why did you respond to this RFP? 2) What are your company's expectations in the event of an award? 3) Provide the full legal name, address, tax identifications number, and telephone number for your business. 4) Provide a copy of your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available) for your organization. 5) Does your company name match the name identified on your audited financial statements from previous year end (or an unaudited copy if an audited copy is not available)? If no, why not? 6) Provide a brief history of your company that includes your company's core values and business philosophy. 7) Provide profiles and an organizational chart for key management, sales management and marketing executives of your company that will oversee and ensure the successful implementation, execution and operation of a Contract resulting from this RFP. 8) How long has your company been in the "PLAYGROUND AND RECREATION RELATED EQUIPMENT, ACCESSORIES, AND SUPPLIES ", industry? 9) Is your organization best described as a manufacturer or a distributor /dealer /re- seller for a manufacturer of the products /equipment and related services being proposed? a) If the Proposer is best described as a re- seller, manufacturer aggregate, or distributor, please provide evidence of your authorization as a dealer /re- seller /manufacturer aggregate for the manufacturer of the products /equipment and related services you are proposing. b) If the Proposer is best described as a manufacturer, please describe your relationship with your sales /service force and /or Dealer Network in delivering the products /equipment and related services proposed. c) Are these individuals your employees, or the employees of a third party? d) If applicable, is the Dealer Network independent or company owned? 10) Please provide your bond rating, and /or a credit reference from your bank. 11) Provide a detailed explanation outlining the licenses and certifications that are both required to be held, and actually held by your organization in pursuit of the commerce and business contemplated by this RFP. 12) Provide a detailed explanation outlining licenses and certifications both required to be held, and actually held, by third parties and sub - contractors to your organization in pursuit of the commerce contemplated by this RFP. If not applicable, please respond with "Not Applicable." 13) Provide all "Suspension or Disbarment" information as defined and required herein. See Section U 9.31. Industry- Marketplace Successes 14) List and document recent industry awards and recognition. 15) Supply three references /testimonials from customers of like status to NJPA Members to include Government and 38 Revision 1 -7 -13 EXHIBIT 5 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF SEL PROTECTIVE RELAYS, CONTROLS, MONITORING, METERING, SOFTWARE, INTEGRATION, ACCESSORIES, AND DEVICES FOR DENTON MUNICIPAL ELECTRIC, WHICH ARE AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 6046- AWARDED TO SCHWEITZER ENGINEERING LABORATORIES (SEL) IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $2,240,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 6046 Schweitzer Engineering Laboratories $2,240,000 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. EXHIBIT 5 SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6046 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: EXHIBIT 6 STATE OF TEXAS § COUNTY OF DENTON § CONTRACT AGREEMENT #5880 BY AND BETWEEN CITY OF DENTON, TEXAS AND CXT INCORPORATED THIS CONTRACT is made and entered into this 1sT day of March 2016, by and between CXT Incorporated, a corporation, whose address is 3808 N. Sullivan Road, Bldg. 7, Spokane Valley, Washington 99216, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home -Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. WITHNESSETH: That for and in consideration of the payments, covenants and agreements contained herein, and under the conditions expressed in the bonds attached hereto, Contractor agrees with the Owner to commence and complete the performance of the work specified within the agreement, in the amount of $757,073.00 and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide construction services in accordance with the specifications, requirements, terms, conditions, and agreements as incorporated herein for all purposes as "Exhibit A — Exhibit I ". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Contractor Quotes for Mack Park, North Lakes, and Roberts - Pricing (Exhibit "A ") (b) Negotiated Scope of Work and Services and Technical Requirements, Drawings, Graphs, Charts, etc. (Exhibit "B "); (Technical Specifications and Drawings are available at the Office of the Purchasing Manager and at http: / /www.cityofdenton.com /departments- services /departments- g- p /materials- management- purchasing- distribution- center - /bids- and - proposals /current -bids- proposals (c) Contractor Payments and Performance Milestones (Exhibit "C "); (d) City of Denton Standard Terms and Conditions and Contractual Requirements (Exhibit «D"); (e) Special Terms and Conditions (Exhibit "E "); (f) Payment and Performance Bonds (Exhibit "F "); (g) Insurance Requirements and Documents from Contractor (Exhibit "G "); (h) Contractor's Business Information (Exhibit "H "); (i) Conflict of Interest Questionnaire (Exhibit "I "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to this written Contract, and then to the contract documents in the sequential order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." EXHIBIT 6 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. TITLE: Senior Sales Manager — South Central Territory 800-696-5766() or 214-755-4487(c) PHONE NUMBER ....... .. . . E-MAIL ADDRESS ATTEST: M CITY OF DENTON, TEXAS A Texas Municipal Corporation M ATTEST: JENNIFER WALTERS, CITY SECRETARY LOW APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY M GEORGE C. CAMPBELL CITY MANAGER EXHIBIT 6 Exhibit A Contract Pricing Details EXHIBIT 6 Mack Park Park Pro osal Malibu Malibu with chase restroom /concession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, Interior and exterior lights, vitreous china fixtures In restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. S 137,000.00 137,000.00 Final Connection to Utilities S 4.000.00 ❑ David Rogers o-CT 4,000.00 Optional Wall Texture ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate 5 2,000.00 ou =CXT Incorporated. Rogers 0.00 Optional RoofTextureo,_we ❑ Delta Rib ❑ Exposed Aggregate S 900.00 0.00 "Front Porch" Style Privacy Screen 5 1,500.00 ❑ 0.00 Two -Tone Color Scheme $ 350.00 ❑ 0.00 Stainless Steel Plumbing Fixtures 1 2,650.00 ❑ 0.00 Electric Hand Dryers 5 2,100.00 2,100.00 Electronic Flush Valves $ 1,850.00 0 1,850.00 Electronic Lavatory Faucets 5 950.00 950.00 Exterior Mounted ADA Drinking Fountain S 2,700.00 ❑ 0.00 30- gallon Electric Water Heater S 750.00 Q 750.00 Skylight in Restroom (each) Qty: 4 $ 425.00 ❑ 0.00 Marine Grade Skylight in Restroom (each) Qty: 4 s 1,400.00 ❑ 0.00 Marine Package for Extra Corrosion Resistance s 9,000.00 ❑ 0.00 Tile Floor In Restroom $ 10,700.00 ❑ 0.00 Fiberglass Entry and Chase Doors and Frames $ 3,450.00 ❑ 0.00 VandlShleld XT $ 10,750.00 ❑ 0.00 Timed Electric Lock System (does not include chase door) s 3,115.00 ❑ 0.00 Exterior Frostproof Hose Bib with Box $ 385.00 ❑ 0.00 Stainless Steel Lavatory (concession) 5 950,00 Q 950,00 Composite Mop Sink (concession) s 850.00 ❑✓ 850.00 PaperTowel Dispenser S 85.00 ❑ 0.00 Toilet Seat Cover Dispenser $ 75.00 ❑ 0.00 Sanitary Napkin Disposal $ 48.00 ❑ 0.00 CXT Wastebasket S 38.00 ❑ 0.00 Paint Touch -up Kit - Single Cola $ 40.00 ❑ 0.00 Paint Touch -up Kit -Two Tone Color $ 50.00 ❑ 0.00 Total Cost of Selected Accessories from Accessories Price List: S 11,450.00 Estimated One -Way Transportation Costs to Site (quote): $ 11,700.00 Custom Options: Items frum Addendum Al (See Attached) $ 143,641.00 Estimated monthly payment on S year lease s 6,086.110 Total Cost per Unit Pla(exd deoab il aaixes) 15 303,791.00 This price quote is good for 60 days from date below, and is accurate I accept this quote. Please process this order. and complete. NJPA Member Number Company Name CXT Sales Representative Customer �„te � YYa � �u�saru�uur� , Da C ontra � J�3 aeC22t13•Qr Date Digitally signed by David David Rogers o-CT Inncorpporated ou =CXT Incorporated. Rogers email ry, c-US er.com, c =US Company Name CXT Sales Representative Customer �„te � YYa � �u�saru�uur� , Da C ontra � J�3 aeC22t13•Qr Date EXHIBIT 6 CXT Incorporated (800) 696-5-766 fox (509) 928-8270 Thursday, July 23, 2015 D f• rat - c m A iii i R& Santiago 26'x 1.0" Storage Sectuon with T -0 "° roh up door and separate storage area 3 56,000000 5680 000 Opflonal Wall Texture -Pupa Valley Stone Oower 3") with Horizontal Lap Upper 1 $ 9,500.00 9,500.00 IEVectrlc Cook Surface /Fire Suppression, Vent Hood, A6r Curtain (RAMS Mach) 1. 1%400.00 $ 19,400.00 Grease Trap, Wure Rack, Dispensers, Hooks, Trash Carus, & Screen Door at Concession 1 $ 4,500.,410 S 4,500.00 FRp Covering on ConceWon Cl nay 1 $ 9,825.00 $ 9,825,00 Best X19 /o Core 33T7L STK626 3 $ 41.00 12100 4) F. SOURCED PROD UCT /9 tUIPMENT /OPEN MARKET ITEMS $ 99,34&00 b Set Texas PEE Stamped Engineers Drawings, MB CertPffPcatPon, 3rd Party lnspecd on 1 $ 3,250.00 $ 3,250,00 Cred ➢t for prepayment of Engineering Services, Denton PO #171451 1 $ (1,500.00) $ (1,500.00) Performance & Payment Bond Cost 1 $ 319.00 $ 819.00 Buu6Pdl ng pad Preparation, Under Slab 4UtuPPty lines out to S', RermitsO 1 $ 41,725.00 $ 41,725.00 Site work does not include any pandscapp ng other than finish grade, ADA ramps from parking, or parking pots. Demolition not incWded 'on prpce. Flat work - Spde• allks /9iufld'un3 apron is avaHable for $3.75 per sq/ft „ -VALUE ADDED ATTRIBUTES, PRODUCTS/SERVICES $ 44,29100 TOTAL ITEMS FROM NJPA SECTION 3)G. & 4)F. $ 143,641,00 EXHIBIT 6 North Lakes Park Prop, osal EXHIBIT 6 Malibu with chase restroomlconcession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. Malibu $ 137,000.00 137,000.00 Final Connection to Utilities $ 4,000.00 Optional Wall Texture o.. ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate $ 2,000.00 Optional Roof Texture ci,*m of ❑ Delta Rib ❑ Exposed Aggregate $ 900,00 "Front Porch" Style Privacy Screen S 1,50000 Two-Tone Color Scheme S 35000 Stainless Steel Plumbing Fixtures S 2,650.00 Electric Hand Dryers $ 2,100.00 Electronic Flush Valves $ 1,850.00 Electronic Lavatory Faucets $ 950.00 Exterior Mounted ADA Drinking Fountain S 2,700.00 30- gallon Electric Water Heater $ 750.00 Skylight in Restroom (each) Qty: 4 s 425.00 Marine Grade Skylight in Restroom (each) Qty: 4 $ 1,400.00 Marine Package for Extra Corrosion Resistance S 91000.00 Tile Floor in Restroom $ 10,700,00 Fiberglass Entry and Chase Doors and Frames S 3,450,00 VandiShield XT 5 10,750.00 Timed Electric Lock System (does not Include chase door) $ 3,115.00 Exterior Frostproof Hose Bib with Box S 385.00 Stainless Steel Lavatory (concession) $ 950.00 Composite Mop Sink (concession) $ 850.00 Paper Towel Dispenser $ 85.00 Tol let Seat Cover Dispenser S 75,00 Sanitary Napkin Disposal $ 48.00 CXT Wastebasket $ 38.00 Paint Touch -up Kit - Single Cola $ 40,00 PalntTouch -up Kit -Two Tone Color $ 50.00 Total Cost of Selected Accessories from Accessories Price List: Estimated One -Way Transportation Costs to Site (quote): Custom Options: Items from Addendum A3 (See Attached) ❑,/ H Estimated monthly payment on S year lease $ 5,318.18 Total Cost per Unit Placed at Job o�J This price quote Is good for 60 days from date below, and is accurate and complete. Digitally signed by David 1109015 David DN: cn =David Rogers, o =CXT Incorporated, ou =CXT Incorporated, Rogers emso ge15f�lbfost er.corn, m, c rUS S S S IS I accept this quote. Please process this order. 4,000.00 0.00 O.OD 0.00 0.00 0.00 2,100.00 1,850.00 950.00 000 750.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 9,650.00 11,700,00 99,997.00 258,347,00 N1PA Member Number Company Name CXT Sales Reprewn ive Customer p°p � ,rwalll��,aa��rwwrsr C rP N oate Contncif022113 -M Date EXHIBIT 6 CXT Incorporated 3803 N Sulllvarn Rd, Bldg #7 Spokane VaIlaye YEA 99216 (660) 696 -5766 ff8K (509) 928-8270 Thursday, Pauly 238 2015 Job: Clly of Denton - North, y4knc - Addendum A3 j Concrete il i Site work does not Include any landscapft other than finish grade, ADA ramps from parking, or parking lots. l:Demolltlo n not uncWcled In prlce. Fiat work - Sude alks /8uullding apron Is available for $8075 per sq/fft 3) G. -VALUE ADDED ATTRIBUTES, PROD /SERVICES $ 44,171.00 TOTAL ITEMS FROM KURA SECTION 3)0. & QP. 99,997.00 rtl PrlD6 Santiago 26'x 10' Office Section with entry door. 1 $ 46,662,00 $ 46,062,00 Optional Wall Texture • Napa Valley Stone (louver 3 °) with Horizontal Lap Upper 1 70200,00 $ 7,20 0.00 50 -Amp RV Camper Electrical Outlet A 40M00 $ 400.DO Best CDR /o Core 63T7L STK626 4 $ 41.00 $ 164.DO 4) Po SOURCED PRODUCT/EQUIPMENT /OPEN MARKET rrEM $ 55@826000 1. Set Texas PE Stamped Engineers Drawings, I1H8 Ceirtofflcatlon, 3rd Party inspection 3. $ 3a250ZO $ 3,250.DC Credit for prepayment of IF.Agineerlrn8 Services„ Denton PO #171451 1 $ (1,500.00) $ (1,500-DO) Performance & Payment Bond Cost 2 $ 696 „00 696.00 8un9ldIng Pad Preparation, Under Slab UVllty lines out to 6 "® Permits" 1 $ 42,725,00 $ 41o72&00 Site work does not Include any landscapft other than finish grade, ADA ramps from parking, or parking lots. l:Demolltlo n not uncWcled In prlce. Fiat work - Sude alks /8uullding apron Is available for $8075 per sq/fft 3) G. -VALUE ADDED ATTRIBUTES, PROD /SERVICES $ 44,171.00 TOTAL ITEMS FROM KURA SECTION 3)0. & QP. 99,997.00 EXHIBIT 6 Roberts Park Pro osal EXHIBIT 6 Malibu with chase rest room /concession building. Standard features include simulated barnwood texture walls, simulated cedar shake textured roof, Interior and exterior lights, vitreous china fixtures in restroom, three compartment stainless steel sink in concession area, roll up concession window, off loaded and set up at site. Malibu $ 137,000.00 137,000.00 Final Connection to Utilities 5 4,000.00 ❑ 4,000.00 Optional Wall Texture ay...,. ❑ Split Face Block ❑ Struck Trowel ❑ Exposed Aggregate S 2,000.00 0.00 Optional Roof Texture -chom one ❑ Delta Rib ❑ Exposed Aggregate $ 900.00 0.00 'Front Porch" Style Privacy Screen S 1,500.00 ❑ 0.00 Two -Tone Color Scheme S 350.00 ❑ 0.00 5talnless Steel Plumbing Fixtures $ 2,650.00 ❑ 0.00 Electric Hand Dryers $ 2,100.00 ❑� 2,100.00 Electronic Flush Valves $ 1,850.00 1,850.00 Electronic Lavatory Faucets $ 950.00 950.00 Exterior Mounted ADA Drinking Fountain $ 2,700.00 ❑ 0.00 30- gallon Electric Water Heater $ 750.00 ❑✓ 750.00 Skylight in Restroom (each) Qty: 4 $ 425.00 ❑ 0.00 Marine Grade Skyl ght in Restroom (each) Qty: 4 S 1,400.00 ❑ 0.00 Marine Package for Extra Corrosion Resistance $ 9,000.00 ❑ 0.00 Tile Floor in Restroom $ 10,700.00 ❑ 0.00 Fiberglass Entry and Chase Doors and Frames $ 3,450.00 ❑ 0.00 VandlShield XT 5 10,750.00 ❑ 0,00 Timed Electric Lock System (does not include chase door) $ 3,115.00 ❑ 0.00 Exterior Frostproof Hose Bib with Box $ 385.00 ❑ 0.00 Stainless Steel Lavatory (concession) $ 950.00 ❑ 0.00 Composite Mop Sink (concession) $ 850,00 ❑ 0,00 Paper Towel Dispenser $ 85.00 ❑ 0.00 Toilet Seat Cover Dispenser $ 75.00 ❑ 0.00 Sanitary Napkin Disposal $ 48.00 ❑ 0.00 CXT Wastebasket S 38,00 ❑ 0.00 Paint Touch -up Kit - Single Color 5 40,00 ❑ 0.00 Paint Touch -up Kit -Two Tone Color $ 50,00 ❑ 0100 Total Cost of Selected Accessories from Accessories Price List: $ 9,650.00 Estimated One -Way Transportation Costs to Site (quote): S 8,775.00 Custom Options: Items from Addendum A2 (See Attached) $ 39,510.00 Total Cost per Unit Placed at Job Site: Estimated monthly payment an 5 year lease $ 3,937.79 (excludes all taxes) 15 194,935.00 This price quote is good for 60 days from date below, and is actuate I accept this quote. Please process this order. and complete. NJPA Member Number Digitally Wgned by David Rogers David 0"CXT �°corp Rogers, ou =CXT Incorporated, Rogers .,.co , c.0 a ®Ibrost er.rbm, c =US Company Name CXT Sales Represent N1, Customer rIV, � wv�,�urwwr 12 Date.. Cnnb,n wu� it -crr Date EXHIBIT 6 Exhibit B EXHIBIT 6 Scope of Work The intent of this RFP is to obtain complete construction of the work identified with the technical specifications as detailed in the quote(s), and further identified within this contract. The work for which proposals are being solicited is described in detail in the Technical Specification contained in Exhibit 2, and the Drawings in Exhibit 3 of this RFP. The proposal submission shall accurately describe the Proposer's understanding of the objectives and scope of the requested construction and provide an outline of the process to complete the requirements of the project. Special Notice and Additional Requirement(s): 1. Additional safety precautions shall be instituted by the awarded contractor, as the work environment will be in an area where citizens and employees may be present, and work safety must be coordinated with the owner. 2. The Contractor shall be responsible for all spoil removals, and any excess soil that will require removal. EXHIBIT 6 CONTRACT 5880 -CITY OF DENTON PARKS RESTROOM BUILDINGS CONSTRUCTION SCHEDULE: All tasks are deliverable after Notice to Proceed is issued. • Order Review / Contracts - 1 week • Engineering (should not need any revisions. Drawings already wet stamped and cannot be changed without new drawings). - 1 day • Submittal of final M.I. (manufacturing instructions) to City for Sign off - 1 week • Production Scheduling - 1 week • Manufacturing - 6 weeks • Finish - 4 weeks (extended lead due to concession equipment) • Schedule for Installation - 2 weeks • Installation - 1 week EXHIBIT 6 Exhibit C Contractor Payment and Performance Milestones EXHIBIT 6 1. INVOICES AND PAYMENT PROCESSING: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing.com. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of Herman Lawson, City of Denton Facilities Management, 869 South Woodrow, Denton, TX 76205. The copy may also be emailed to Mr. Herman Lawson at herman.lawsongcityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payment within the first five days of the month, and submitted on the AIA Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling #95 -0.07 and #95 -0.09. 3. PAYMENT APPLICATIONS AND PAYMENTS TO CONTRACTORS: A. Upon presentation of valid payment requests invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect /Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety -five percent (95 %) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not later than thirty (30) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless EXHIBIT 6 such excess shall have been approved by the Owner, and Owner's Representative, and in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Release of Liens and Certificate of Contractor shall be accomplished in accordance with Article 5.3 of the Standard Terms and Conditions. 5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS: The Contractor shall pay each materialman, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each materialman or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and /or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages This section has been intentionally deleted per mutual agreement of both parties. C. Cumulative Remedies Every right or remedy herein conferred upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of EXHIBIT 6 damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. EXHIBIT 6 Exhibit D EXHIBIT 6 CITY OF DENTON GENERAL CONDITIONS FOR BUILDING CONSTRUCTION ARTICLE 1 GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the Owner and the Contractor, these General Conditions and other supplementary conditions included by special provisions or addenda, drawings, specifications, addenda issued prior to execution of the Contract, other documents listed in the Contract, and Amendments issued after execution of the Contract. For purposes of these General Conditions, an Amendment is: (1) a written Supplemental Agreement to the Contract signed by authorized representatives of both parties; (2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or (3) a written order for a minor change in the Work issued by the Architect /Engineer as described in Paragraph 7.3. The Contract Documents also include bid documents such as the Owner's Instructions to Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents, and any other documents, exhibits or attachments specifically enumerated in the Building Construction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Contractor. b) THE CONTRACT The Contract Documents, as defined in Paragraph 1. 1, are expressly incorporated into and made a part of the formal Building Construction Services Agreement between the Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to collectively in these General Conditions as the "Contract "). The Contract Documents represent the entire and integrated agreement between the Owner and the Contractor and supersede all prior negotiations, representations or agreements, either written or oral. The terms and conditions of the Contract Documents may be changed only by an Amendment. The Contract Documents shall not be construed to create a contractual relationship of any kind: (1) between the Architect /Engineer and Contractor; (2) between the Owner and a Subcontractor or Sub - subcontractor; or (3) between any persons or entities other than the Owner and Contractor. EXHIBIT 6 The Architect /Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect /Engineer's duties. c) THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor, or any Subcontractors, Sub - subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work may constitute the whole or apart of the Project. d) THE PROJECT The Project is the total construction more particularly described in the Building Construction Services Agreement, of which the Work performed under the Contract Documents may be the whole or a part of the Project and which may include construction by the Owner or by separate contractors. All references in these General Conditions to or concerning the Work or the site of the Work will use the term "Project," notwithstanding that the Work may only be a part of the Project. e) THE DRAWINGS The Drawings (also known as the "Plans ") are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. f) THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, performance of related services, and other technical requirements. g) THE PROJECT MANUAL The Project Manual is the volume or volumes which contain the bidding requirements, sample forms, General Conditions for Building Construction, special provisions, and Specifications. The Project Manual may be modified by written addendums issued by the Owner during bidding, in which case the written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated by the Owner in writing. h) ALTERNATE An Alternate is a variation in the Work on which the Owner requires a price separate from the City Building General Conditions Base Proposal. If an Alternate is accepted by the Owner, the variation will become a part of the Contract through the execution of a change order or amendment to the Contract and the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner, and later deleted prior to any Work under the alternate being performed or materials delivered to the Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the Contractor's Bid. i) BASE Proposal The Base Proposal is the price quoted for the Work before Alternates are considered. j) HAZARDOUS SUBSTANCE The term Hazardous Substance is defined to include the following: EXHIBIT 6 (1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non- friable; (2) any polychlorinated biphenyls ( "PCBs "), or PCB - containing materials, or fluids; (3) radon; (4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; (5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its condition, concentration or area of release could have a significant effect on human health, the environment, or natural resources; (6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I) (including those defined by Section 9001 (1) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and (8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic substance as those or similar terms are defined under any federal, state, or local environmental laws, rules, or regulations. k) OTHER DEFINITIONS As used in the Contract Documents, the following additional terms have the following meanings: (1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials, appurtenances and other expenses to complete in place, ready for operation or use; (2) "shall" means the action of the party to which reference is being made is mandatory; (3) "as required" means as prescribed in the Contract Documents; and (4) "as necessary" means all action essential or needed to complete the work in accordance with the Contract Documents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. EXHIBIT 6 (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including subsurface conditions as described and identified in the Geotechnical Report, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. (d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. (e) Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. (f) The Drawings and Specifications are intended to agree with one another, and Work called for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both. Specifications shall govern materials, methods and quality of work. In the event of a conflict on the Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and large scale drawings shall govern over small scale drawings. Conflict between two or more dimensions applying to a common point shall be referred to the Architect /Engineer /Engineer for final adjustment. If discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work, or within or between other Contract Documents, the Contractor shall not perform such Work without having obtained a clarification from the Architect /Engineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or the Specifications disagree within themselves or with each other; the Base Bid will be based on the most expensive combination of quality and quantity of Work indicated. (g) Deviations from Contract Documents shall be made only after written approval is obtained from Architect /Engineer and Owner, as provided in Article 7. (h) The intention of the Contract Documents is to include all materials, labor, tools, equipment, utilities, appliances, accessories, services, transportation, and supervision required to completely perform the fabrication, erection and execution of the Work in its final position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; EXHIBIT 6 (3) addenda, with those addenda of later date having precedence over those of an earlier date; (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifications and Drawings. 1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect /Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. 1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are: (1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.10), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses; (3) the titles of other documents published or used by the Owner as manuals or official policy statements; or (4) proper nouns or other words required under standard grammatical rules to be capitalized. ARTICLE 2 THE OWNER 2.1 DEFINITION OF OWNER The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representatives. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER (a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish any environmental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. EXHIBIT 6 (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3. 10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including redeliveries by the Owner to comply with the current schedule. (d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies of the Drawings and Specifications for bid purposes and one hard copy approved by Building Inspections upon execution of the Contract. Contractor may obtain additional copies by paying the cost of additional printing or reproduction. (e) The obligations described above are in addition to other duties and responsibilities of the Owner enumerated in the Contract Documents and especially those in respect to Article 6 (Construction by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11 (Insurance and Bonds). (f) The Owner shall forward all instructions to the Contractor through the Architect /Engineer, except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as described in Paragraph 2.4. (g) The Owner's employees, agents, and consultants may be present at the Project site during performance of the Work to assist the Architect /Engineer in the performance of the Architect /Engineer's duties and to verify the Contractor's record of the number of workmen employed on the Work, their occupational classification, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within twenty (20) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect /Engineer's compensation for additional services and expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to verification (but not approval) by the Architect /Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner. EXHIBIT 6 2.5 NOTICE TO PROCEED After final execution of the Contract and receipt and approval of the required performance and payment bonds and evidence of required insurance, the Owner will issue a written notice to proceed with the Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason. ARTICLE 3 THE CONTRACTOR 3.1 DEFINITION OF CONTRACTOR The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Contractor shall carefully check, study, and compare the Contract Documents with each other and shall at once report to the Architect /Engineer in writing any inconsistency, ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Contractor will be held responsible for any known or reasonably discovered subsequent error, omission, conflict, or discrepancy which might have been avoided by the above - described check, study, comparison, and reporting. In the event the Contractor continues to work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists without obtaining such clarification or resolution or commences an item of the Work without giving written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check, study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the Contract Documents, without any increase to the Contract Sum or Contract Time. The Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or Contract Time. (b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth specific instructions concerning these matters. EXHIBIT 6 (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub - subcontractors, and their respective agents and employees, and any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work required throughout shall be of a quality that will bring only first class results. Mechanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect /Engineer in the Architect /Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any way eliminate the Architect /Engineer's responsibility to the Owner under the Architect /Engineer /Owner Agreement. (e) Any Contractor, Subcontractor, Sub - subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor, sub - subcontractor or separate contractor without the Contractor having given written notice to the Architect /Engineer of the existence of any known or reasonably discovered faulty surface or condition -in the surface that prevents achieving the quality of workmanship specified by the Contract Documents and without having obtained the prior approval of the Architect /Engineer and the Owner to proceed is deemed to have accepted the surface or condition in the surface as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre- approved by the Architect /Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time. (f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the Contractor. The Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Each Contractor for his own Work shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the Owner, establish and maintain adequate horizontal and vertical control. 3.4 LABOR AND MATERIALS (a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the Owner, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other EXHIBIT 6 facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. (b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the employment relates, to all labor hired for the Project in the following order: (1) to bona fide residents of the City of Denton, Texas; (2) to bona fide residents of the County of Denton, Texas; (3) to bona fide residents of the State of Texas; (4) to bona fide residents of the United States. 3.5 WARRANTY (a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good and workmanlike manner and that all materials and equipment furnished under the Contract will be of good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will otherwise conform to the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, will be considered defective or nonconforming. The Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the Architect /Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. THE GENERAL WARRANTY PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE- EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF TWO (2) YEARS AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF THE LATENT DEFECT. (b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under the Contract Documents. 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to EXHIBIT 6 be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. 3.7 PERMITS, FEES AND NOTICES (a) The Architect /Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits, and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department. (b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of governmental entities or agencies applying to performance of the Work. (c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor shall promptly notify the Architect /Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or rules and regulations without notifying the Architect /Engineer and the Owner, the Contractor shall assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work and any other Work in place that may be adversely affected by the corrective work. 3.8 ALLOWANCES (a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for the amounts identified in the Contract and by persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities against which the Contractor makes reasonable objection. (b) Unless otherwise provided in the Contract Documents: (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment delivered at the site less all exempted taxes and applicable trade discounts; (3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance Work; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect: (i) the difference between actual costs and the allowances under Clause (b) (2); and EXHIBIT 6 (ii) changes in Contractor's costs under Clause (b) (3); (5) the Owner retains the right to review and approve Subcontractors selected by the Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Contractor replace its superintendent at any time and the Contractor will replace said superintendent at the Owner's direction. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the construction schedule for the Architect /Engineer's and Owner's information, review, and approval in accordance with the following provisions: (1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall provide for expeditious and practicable execution of the Work. (2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Contractor; and (ii) the latest date for approval by the Architect /Engineer. (3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor ") of all the major construction activities of the Work in a logical and sequential order (the "project network ") which requires completion prior to commencement of the task next following (the "successor "). Each task shall be identified with: (i) actual work time, exclusive of slack time, for accomplishment; (ii) the latest start date; (iii) the latest finish date; (iv) the amount of float associated with each task; (v) the amount of labor, material, and equipment associated with each task; and (vi) the percentage of completion as of the date of the current schedule. (4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. EXHIBIT 6 (5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect /Engineer and the Owner an up -to -date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist of a time scale drawing indicating actual progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect /Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect /Engineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the Architect /Engineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect /Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes EXHIBIT 6 and selections made during construction, and in addition shall maintain at the Project site approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect /Engineer and shall be delivered to the Architect /Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect /Engineer is subject to the limitations of Paragraph 4.2. (e) The Contractor shall review, approve and submit to the Architect /Engineer Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. (f) The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been approved by the Architect /Engineer. Work requiring this submittal and review shall be in accordance with approved submittals and any identified exceptions noted by the Architect /Engineer. (g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and related field construction criteria, or will do so, and has checked and coordinated the information contained within submittals with the requirements of the Work and of the Contract Documents. The Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions, deletions or omissions from requirements of the Contract Documents by the Architect /Engineer's approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Architect /Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at the time of submittal and the Architect /Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect /Engineer's approval thereof. Further, notwithstanding any approval of a submittal by the Architect /Engineer, the Contractor shall be responsible for all associated Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not specifically identified by the Contractor to the Architect /Engineer at EXHIBIT 6 the time of the above - mentioned submittals, including additional consulting fees, if any, in any and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to additional,revisions other than those requested by the Architect/Engineer on previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not requested. (j) Informational submittals upon which the Architect /Engineer is not expected to take responsive action may be so identified in the Contract Documents. (k) When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents, the Architect /Engineer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 3.13 USE OF THE PROJECT SITE The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project site with materials or equipment. 3.14 CUTTING AND PATCHING (a) The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. (c) A Hot Work Permit must be obtained from the City of Denton's Facilities Management Department, 869 S. Woodrow Lane, Denton, Texas (940 349 -7200) for any temporary operation involving open flames or producing heat and /or sparks. This includes, but is not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect /Engineer access to the Work in preparation and progress wherever located during the course of construction. EXHIBIT 6 3.17 TESTS AND INSPECTIONS (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental entity or agency, and the Contractor shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Architect /Engineer timely notice of when and where tests and inspections are to be made so the Architect /Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received. (b) If the Architect /Engineer, the Owner or other public authorities having jurisdiction over the Work determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 3.17(a), the Architect /Engineer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect /Engineer of when and where tests and inspections are to be made so that the Architect /Engineer may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c). (c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of repeated procedures and compensation for the Architect /Engineer's services and expenses, if any. The Contractor shall bear the costs of any subsequent testing, inspection, or approval of the corrected Work. (d) Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect /Engineer. (e) If the Architect /Engineer is to observe tests, inspections or approvals required by the Contract Documents, the Architect /Engineer will do so promptly and, where practicable, at the normal place of testing or inspection. (f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 3.18 ROYALTIES AND PATENTS The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT /ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT THE OWNER OR THE ARCHITECT /ENGINEER SPECIFIED A PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Contractor shall immediately notify the Owner and the Architect /Engineer of same. EXHIBIT 6 3.19 INDEMNIFICATION (a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT /ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB - SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE ARCHITECT /ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT /ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the Architect /Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety and health of workers. The Contractor specifically agrees to comply with the above - mentioned laws and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect /Engineer under the above - mentioned laws and regulations are secondary to those of the Contractor. EXHIBIT 6 ARTICLE 4 CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT/ENGINEER) (a) The design professional is the person lawfully licensed to practice architecture or engineering or a firm or other business entity lawfully practicing architecture /engineering identified as such in the formal Building Construction Services Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect /Engineer" means the Architect /Engineer or the Architect /Engineer's authorized representative. The Owner may, at its option, designate a qualified Owner representative to serve as the Architect /Engineer on the Project instead of an outside firm or person. In such event, the references in these General Conditions that refer to the Architect /Engineer shall apply to the Owner- designated Architect /Engineer representative and the Owner- designated Architect /Engineer representative shall be accorded that same status by the Contractor. (b) In the event the Architect /Engineer is an outside person or firm and the Architect /Engineer's employment is terminated, the Owner may, at its option, contract with a new outside Architect /Engineer to replace the former, or may designate a qualified Owner representative to serve as the Architect /Engineer. The replacement Architect /Engineer, whether an Owner representative, an independent Architect /Engineer or any other qualified person or entity, shall be regarded as the Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled by the Owner, whose decision shall be final and binding. (c) Owner reserves the right to appoint a representative empowered to act for the Owner during the Construction Phase and to supersede the Architect /Engineer's Construction Phase responsibility. Owner shall notify the Architect /Engineer and Contractor in writing at least 10 days in advance, if electing to appoint a representative empowered to act for the Owner during the Construction Phase. Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the Architect /Engineer, with the Owner notifying the Contractor of any such changes. The Architect /Engineer shall not be construed as a third party beneficiary to the Contract and can in no way object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have control over charge of, or be responsible for, construction means, methods, techniques, sequences, or procedures, or for safety precautions or programs in connection with the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.2 ARCHITECT /ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION (a) The Architect /Engineer will administer the Contract as described in the Contract Documents and in accordance with the terms of the Architect /Engineer's agreement with the Owner, where applicable, subject to the direction and approval of the Owner. If requested by the Contractor, the provisions of the Owner /Architect /Engineer Agreement will be made available to the Contractor. (b) The Architect /Engineer shall provide, during performance of the Work, adequate and competent periodic on -site construction observation, periodically visiting the Project site to the extent EXHIBIT 6 necessary to personally familiarize themselves with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. The Architect /Engineer shall not, however, be required to make continuous on -site inspections to check the Work. Field reports of each visit shall be prepared by the Architect /Engineer and submitted to the Owner. The Architect /Engineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the Work. The Architect /Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect /Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect /Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect /Engineer and the Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub - subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Architect /Engineer. Communications by and with the Architect/Engineer's consultants shall be through the Architect /Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made directly with the Owner and provide copies of such confirmation to the Architect /Engineer. (e) Based on the Architect /Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect /Engineer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. (f) The Architect /Engineer and the Owner will each have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect /Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect /Engineer will have authority to require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect /Engineer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of the Architect /Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. (g) The Architect /Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect /Engineer's action will be taken with such EXHIBIT 6 reasonable promptness as to not delay the Work or the activities of the Owner, Contractor, or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect /Engineer's review of the Contractor's submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect /Engineer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated in writing by the Architect /Engineer, of any construction means, methods, techniques, sequences, or procedures. The Architect /Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The Architect /Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3. (i) The Architect /Engineer will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. (j) If the Owner and Architect /Engineer agree, the Architect /Engineer will provide one or more Project representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties, responsibilities, and limitations of authority of such Project representatives shall be as set forth in an exhibit to be incorporated into the Contract Documents. (k) The Architect /Engineer will interpret and make recommendations to the Owner concerning performance under and requirements of the Contract Documents upon written request of either the Owner or Contractor. The Architect /Engineer's response to such requests will be made with reasonable promptness and within any time limits agreed upon. The Architect /Engineer shall secure the Owner's written approval before issuing instructions, interpretations, or judgments to the Contractor which change the scope of the Work or which modify or change the terms and conditions of any of the Contract Documents. (1) Interpretations and decisions of the Architect /Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect /Engineer will endeavor to secure faithful performance by the Contractor. (m)The Architect /Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents provided that the Architect /Engineer has prior written approval of the Owner. 4.3 CLAIMS AND DISPUTES (a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a "Claim" means a demand or assertion by one of the parties to the Contract seeking an adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the scope of the Contract EXHIBIT 6 Documents. The responsibility to substantiate the Claim and the burden of demonstrating compliance with this provision shall rest with the party making the Claim. Except where otherwise provided in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT /ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, shall be signed and sworn to by an authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect /Engineer. Claims, disputes, and other matters in question between the Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the Contract Documents shall be referred to the Architect /Engineer for recommendation to the Owner, which recommendation the Architect /Engineer will furnish in writing within a reasonable time, provided proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim to the Architect /Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the Claim. (c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and (5) the Owner and the Architect /Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. EXHIBIT 6 (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT /ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT /ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS. (f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect /Engineer a sufficient amount of time, without adversely affecting the construction schedule, to review the request, prepare and distribute such additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a Change Order for the required work if the Contractor believes that additional cost is involved for reasons including but not limited to: (1) a written interpretation from the Architect/Engineer; (2) a written order for a minor change in the Work issued by the Architect/Engineer; (3) failure of payment by the Owner; (4) termination of the Contract by the Owner; (5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or property because of an act or omission of the Owner, or of any of the Owner's officers, employees or agents, written, sworn -to notice of any claim for damages or injury shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail to enable the Architect /Engineer and the Owner to investigate the matter. (h) Subcontractor Pass - Through Claims. In the event that any Subcontractor of the Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be subject to: (1) the requirements of Paragraph 4.3 of these General Conditions; and (2) the following additional three requirements listed below, all three of which additional requirements shall be conditions precedent to the entitlement of the Contractor to seek and assert such claim against the Owner: EXHIBIT 6 (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identified in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by the Subcontractor shall be included by Contractor in the claim submittal materials. (3) Any failure of the Contractor to comply with any of the foregoing requirements and conditions precedent with regard to any such claim shall constitute a waiver of any entitlement to submit or pursue such claim. (4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial Completion of the Work by or before the Scheduled Completion Date is of substantial importance to Owner. The following provisions, therefore, will apply: (1) If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Contractor to develop a recovery schedule as described in Paragraph 3.10 or to accelerate its progress in such a manner as to achieve Substantial Completion on or before the Contract Time completion date or such other date as the Owner may reasonably direct and, upon'receipt, the Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Contractor is otherwise entitled to an extension of Contract Time and has properly initiated a Claim for a time extension in accordance with Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner's sole discretion, to deny all, or any part, of the Claim for extension of Contract Time by giving written notice to the EXHIBIT 6 Contractor provided within fourteen (14) days after receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date. (3) If the Contractor would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by the Owner if not for the need and right to accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by the Contractor and approved in writing by the Owner. A percentage markup for the prorated cost of premium on the existing performance and payment bonds and required insurance, not to exceed 5 %, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from: (1) claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled; (2) defective or nonconforming Work appearing after Substantial Completion; (3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or (4) the terms of general and special warranties required by the Contract Documents or allowed or implied by law. (k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING. (1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER'S GOVERNMENTAL IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE LAW. EXHIBIT 6 ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease for use in performance of or incorporation into the Work. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. (b) A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Subcontractor or another Sub - subcontractor by purchase or lease for use in performance of or incorporation into the Work. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK. WITH REGARDS TO MWBE, THE CITY OF DENTON ONLY REQUIRE A GOOD FAITH EFFORT, THERE IS NO PERCENTAGE REQUIREMENT. (a) Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the Architect /Engineer in writing, for acceptance by the Owner and the Architect /Engineer, a list of the names, addresses, telephone numbers, M /WBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect /Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect /Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect /Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect /Engineer has made reasonable and timely objection. (c) Architect /Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect /Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect /Engineer makes reasonable objection to such change. EXHIBIT 6 5.3 SUBCONTRACTUAL RELATIONS (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner and the Architect /Engineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect /Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect /Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions of such Documents available to their respective proposed Sub - subcontractors. (b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report") with each Application and Certificate for Payment, along with partial waivers of liens for all Work included in the application for payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. Pay applications will not be reviewed or certified by the Architect to the Owner without accompanying partial lien waivers after the first Certificate for payment. With each Application for Payment, the Contractor shall certify that there are no mechanics' or materialmen's Liens outstanding at the date of the Application for Pyament, and that all bills due with respect to the Work have been paid to date, and that there is no known basis for filing of any liens against the Surety or the Owner in connection with the Work. Upon completion by the Contractor of the construction of the project, but prior to. final payment to the Contractor, the Contractor shall deliver to the Owner conditional releases of all liens, which shall identify the remaining sums to be paid pending receipt of final payment. The conditional releases of liens, upon final payment by the Owner, shall rlease the Owner of all liens, and of all rights to claim any lien, from all manufacturers, material -men, and subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Ower is released from all such claims. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. Provided that the Owner has been notified by written correspondence (a lien notice) from any manufacturer, material -men, or subcontractor furnishing services or materials for the project that an outstanding debt is owed, the Owner shall ensure that the Contractor is notified of such notice within ten (10) days of receipt of such notice. The Contractor shall ensure that resolution has EXHIBIT 6 been achieved for each written notice filed with the Owner, and provide sufficient written documentation to the Owner that payment has been rendered, or a resolution has been achieved that is satisfactory to the Owner. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment received or other information furnished to the Owner that: (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCHITECT /ENGINEER'S ENFORCEMENT OF THIS SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT /ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals and copies of the subcontract documents. In the event assignment is not requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same and to the extent that they relate to the performance of Work terminated by the notice of termination. ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS (a) The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Project site under Conditions of the Contract identical or substantially similar to these General Conditions, including those portions related to EXHIBIT 6 insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with the Contract Documents. (b) When separate contracts are awarded for different portions of the Project or other construction or operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Building Construction Services Agreement with the Owner. (c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's Change Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. (d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under these General Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY (a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and storage of their materials and equipment and the performance of their activities and shall coordinate the Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect /Engineer apparent discrepancies or defects in the other construction that would render it unsuitable for proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault or negligence of a separate contractor or through failure of a separate contractor to carry out the directions of the Owner or the Architect /Engineer. Should any interference occur between the Contractor and a separate contractor, the Architect /Engineer or the Owner may furnish the Contractor with written instructions designating priority of effort or change in methods, whereupon the Contractor shall immediately comply with such direction. In such event, the Contractor shall be entitled to an extension of the Contract Time only for unavoidable delays EXHIBIT 6 verified by the Architect /Engineer; no increase in the Contract Sum, however, shall be due to the Contractor. (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred. (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the Project site and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as the Architect /Engineer recommends to be just. ARTICLE 7 AMENDMENTS 7.1 CHANGE ORDERS (a) A Change Order is a written order to the Contractor, signed by the Owner and the Architect /Engineer, issued after execution of the Contract, authorizing a change in the Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent with other applicable provisions of this Contract. The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties, may order changes to the scope of Work under the Contract by additions, deletions, or other revisions, the Contract Sum and Contract Time to be adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the Owner's City Attorney. (b) In addition to the Owner and the Architect /Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however, should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect /Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The EXHIBIT 6 Contractor forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative impact of all Change Orders and to any claim related to the effect of a change on other Work. (c) No extra work (except under emergency conditions) or changes shall be made nor shall any substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings and Specifications be made unless pursuant to a written Change Order signed by the Owner and the Architect /Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra work or any substitution, change, addition, omission or deviation from the requirements of the Drawings or Specifications unless the same shall have been authorized in writing by the Owner and the Architect/Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders under emergency conditions. (d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following: (1) mutual acceptance of a guaranteed maximum price amount properly itemized and supported by sufficient substantiating data to permit evaluation; (2) unit prices stated in the Contract Documents or subsequently agreed upon; (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the force account method provided in Subparagraph 7.1(e) (e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15 %. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect /Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect /Engineer each day during the performance of force account work, with copies to the Owner. FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; EXHIBIT 6 (2) costs of materials, supplies and equipment (but not to include off -site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect /Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect /Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect /Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. 7.4 TIME REQUIRED TO PROCESS AMENDMENTS (a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in advance of the required work to allow the Owner and the Architect /Engineer a minimum of thirty (30) calendar days after receipt by the Architect /Engineer to review the itemized EXHIBIT 6 breakdown and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other grounds for seeking extra compensation under the Contract Documents, without reservation or further recourse. (b) All Amendments require approval by either the City Council or, where authorized by the state law and City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a minimum of forty -five (45) calendar days after submission to the Owner in final form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with the work under a pending Amendment only if directed in writing by the Owner. ARTICLE 8 CONTRACT TIME 8.1 DEFINITIONS (a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. (b) The date of commencement of the Work is the date established in the notice to proceed from the Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of persons or entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. (c) The date of Substantial Completion is the date certified by the Architect /Engineer in accordance with Paragraph 9.7. (d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at 12:00 midnight, unless otherwise specifically defined by special provision. 8.2 PROGRESS AND COMPLETION (a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Building Construction Services Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing, prematurely commence operations on the Project site or elsewhere prior to the effective date of insurance to be furnished by the Contractor as required by Article 11. The date of commencement of the Work shall not be changed by the effective date of insurance required by Article 11. EXHIBIT 6 (c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the Building Construction Services Agreement, or in any proper extension of the Contract Time granted by the Owner, then the Contractor agrees, as a part of the consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated damages (hereinafter called the "Stipulated Amount ") as stipulated in the Bid Proposal form and the Building Construction Services Agreement for each calendar day that the Contractor has not Substantially Completed the Work after the expiration of the Contract Time provided. The Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient to recover the Stipulated Amount, then the Contractor or the Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in excess of the funds remaining unpaid in the Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially Completed within the calendar days allotted, which shall include the original Contract Time and any proper extension of the Contract Time granted in writing by the Owner. Should the Contractor dispute the Owner's determination of liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns, institute any legal action against the Owner to enforce rights under the Contract Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking full recovery for any and all actual damages suffered by the Owner and attributable to the Contractor, as an alternative to all liquidated damages due. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Architect /Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect /Engineer and Owner may determine. (b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3. (c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR EXHIBIT 6 FAULT OF THE OWNER, THE ARCHITECT /ENGINEER, OR THE OWNER'S REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY. (d) The Owner shall have the right to occupy, without prejudice to the right of either party, any completed or largely completed portions of the structure or Work, notwithstanding the fact that the Contract Time for completing all or a portion of the Work may not have expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken or used. (e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being suspended by a court order. (f) The Architect /Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect /Engineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent damage or deterioration of the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor shall not suspend the Work in whole or in part without written authority from the Architect /Engineer or the Owner, and shall resume the Work promptly when notified by the Architect /Engineer or the Owner to resume operations. (g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect /Engineer, Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM The Contract Sum is stated in the Building Construction Services Agreement and, including authorized adjustments, is the total amount of compensation payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Contractor shall submit to the Architect /Engineer a schedule of values allocated to various portions of the Work, prepared in such form and supported EXHIBIT 6 by such data to substantiate its accuracy as the Architect /Engineer may require. This schedule, when approved by the Architect /Engineer and the Owner, shall be used as a basis for the Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment), as approved by the Owner. 9.3 APPLICATIONS FOR PAYMENT (a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect /Engineer an itemized Application for Payment for Work completed in accordance with the schedule of values. The Application shall be notarized, if required, and supported by data substantiating the Contractor's right to payment as the Owner or Architect /Engineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off -site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off -site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. EXHIBIT 6 (e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an "early delivery." All early delivery materials or equipment must have the express written permission- of the Owner to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off -site until required at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved for payment as stored materials prior to thirty (30) days before the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in writing by the Owner. (f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect /Engineer will, within ten (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect /Engineer determines is properly due, or notify the Contractor and Owner in writing of the Architect /Engineer's reasons for withholding certification in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certificate for Payment will constitute a representation by the Architect /Engineer to the Owner, based on the Architect /Engineer's observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect /Engineer's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to Final Completion and to specific qualifications expressed by the Architect /Engineer. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate for Payment is not a representation that the Architect /Engineer has: (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; EXHIBIT 6 (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect /Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) This section has been modified per mutual agreement of the parties. The following process will meet the requirements of Texas Government Code 2253: 1. The Contractor has agreed to invoice the Owner upon completion and acceptance of the project, with net 30 terms. 2. Prior to final acceptance of the project by the Owner, the Contractor shall have rectified any and all issue regarding compliance with the City of Denton's Building Codes and Fire Codes. 3. The Contractor shall provide notice of project completion to all parties, materialmen, sub- contractors, bonding entities, etc. in accordance with the provisions of Texas Government Code 2253 (McGregor Act). 4. The Owner will submit and apply for a Certificate of Occupancy. The Contractor agrees to assist the Owner with providing necessary support to obtain a Certificate of Occupancy for the buildings. 5. Contractor may submit the invoice to Owner for one -half (1/2) of the project cost, and shall be paid within 15 days of invoice submission. 6. Prior to final payment, Contractor shall provide to the Owner, evidence of all lien releases to the City of Denton. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect /Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect /Engineer's or Owner's opinion the representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect /Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect /Engineer or the Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and Architect /Engineer or the Owner cannot agree on a revised amount, the Architect /Engineer will EXHIBIT 6 promptly issue a Certificate for Payment for the amount for which the Architect /Engineer is able to make the required representations to the Owner. The Architect /Engineer or the Owner may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary, in the Architect /Engineer's or Owner's opinion, to protect the Owner from loss because of: (1) defective or nonconforming Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; (7) persistent failure to carry out the Work in accordance with the Contract Documents; or (8) mathematical or other errors that are discovered in the Application for Payment. (b) When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payment or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect /Engineer has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect /Engineer. The Owner shall not be liable for interest on any late or delayed progress payment or final payment caused by any claim or dispute, any discrepancy in quantities, any failure to provide supporting documentation or other information required with the Application for Payment or as a precondition to payment under the Contract Documents, or due to any payment the Owner or the Architect /Engineer has a right to withhold or not certify under the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including, without limitation, the final Certificate for Payment) for any default under the Contract Documents, including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Contractor default remains uncured. EXHIBIT 6 (b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in similar manner. (c) The Architect /Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect /Engineer and the Owner on account of portions of the Work done by such Subcontractor. (d) Neither the Owner nor the Architect /Engineer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3. (e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d). (f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certified by the Architect /Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Architect /Engineer a comprehensive list of remaining items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list "). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect /Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substantially Complete. If the Architect /Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the Contract Documents and which renders the Work inspected not Substantially Complete the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct the item upon notification by the Architect /Engineer. The Contractor shall then submit a request for another inspection by the Architect /Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect /Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish EXHIBIT 6 responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect /Engineer, the Owner shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect /Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect /Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. (c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.9 FINAL COMPLETION AND FINAL PAYMENT (a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect /Engineer, accompanied by the Owner's representative, will promptly make final inspection and, when the Architect /Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the Architect /Engineer will promptly issue a final Certificate for Payment stating that to the best of the Architect /Engineer's knowledge, information and belief, and on the basis of the Architect /Engineer's observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect /Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final payment within thirty (30) days after EXHIBIT 6 Owner's receipt and approval of the final Certificate for Payment. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect /Engineer: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) a consent of surety to final payment; and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. (c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to him for the Work under this Contract. In the event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit the amount owed and the name of each subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. (d) If, after Substantial Completion of the Work, final completion of the Work is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion and the Architect /Engineer confirms the delay, the Owner shall, upon application by the Contractor and certification by the Architect /Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect /Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. EXHIBIT 6 ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. (b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. (e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre- approve the use of any explosives on the Project; the Contractor shall not assume in its bid that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect /Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, EXHIBIT 6 REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT /ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect /Engineer with evidence of insurance sufficient to cover possible damage or injury, which insurance shall either include the Owner and the Architect /Engineer as additional insureds or be sufficiently broad in coverage as to fully protect the Owner and the Architect /Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places shall be marked clearly "DANGEROUS- EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton Fire Department regulations. The Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity of the Project Site of the Contractor's intention to use explosives, and such notice shall be given sufficiently in advance to enable the telecommunications and public utility companies and private property owners to take such steps as they may deem necessary to protect their property from injury. The notice shall not relieve the Contractor of any responsibility for damage resulting from any blasting operations. (f) The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions of the Owner or Architect /Engineer or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by property insurance or other insurance required by the Contract Documents, the Owner and the Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for such damage or loss. (g) The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect /Engineer. (h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety. 10.3 EMERGENCIES In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury, or loss. Additional EXHIBIT 6 compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Contractor shall place materials stored about the Work and shall conduct the Work at all times in a manner that causes no greater obstruction to the public than is considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special permission of the Owner. The materials excavated and the construction materials or plant used in the performance of the Work shall be placed in a manner that does not endanger the Work or prevent free access to all fire hydrants, water mains and appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity. (b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to public convenience and safety which may come to the Owner's attention, after twenty -four (24) hours notice in writing to the Contractor. In case of an emergency, the Owner shall have the right to immediately remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case of major thoroughfares or street upon which transit lines operate, be forty -eight (48) hours in advance. The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor shall, when directed by the Architect /Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor's responsibility for accidents shall include the roadway approaches as well as the crossing structures. 10.5 BARRICADES, LIGHTS AND WATCHMEN If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect /Engineer may order the damaged portion immediately removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted by the Owner. EXHIBIT 6 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect /Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect /Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical connections with the Owner or with Denton Municipal Electric in the event that separately metered electrical connections are required for the Project. The Contractor shall pay 'for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly authorized to do so by the Denton Water Utilities Department in accordance with the Denton City Code. EXHIBIT 6 10.10 ENVIRONMENTAL COMPLIANCE (a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable federal, state or local laws, rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. (b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter to the Architect /Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors, the Contractor shall be responsible for remediating the condition at the sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner and the Architect /Engineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. (d) Spill Prevention Plan. At least seventy -two (72) hours prior to commencing performance of any of the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and regulations. The SPRP shall be specially designed for the Contractor's planned work methods and procedures. The SPRP shall be designed to EXHIBIT 6 complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty -four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect /Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. (f) The Contractor shall deposit surplus or waste excavation or other materials removed as part of the Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to removal of any excavation or other material from the Project site. A copy of all transport manifests for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request to the Architect /Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. EXHIBIT 6 (g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to the Clean Water Act; 33 U.S.C.A. § §1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos - related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable. (i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days advance written notice from the Owner to comply with the provisions of this Paragraph 10. 10, the terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other environmental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: (1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed plan to achieve compliance within a reasonably prompt period of time is prepared by the Contractor and approved by the Owner; (2) if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor for the cost of the remediation or correction; or (3) terminate the Contract for cause as provided in Article 13, ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.2 PROPERTY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to Attachment A for all City of Denton insurance requirements.. 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS EXHIBIT 6 Contractors shall refer to Attachment A for all City of Denton insurance requirements. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -of- Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: (1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and faithful execution of the Work and performance of the Contract in accordance with Plans, Specifications and all other Contract Documents, including any Amendments thereof, for the protection of the Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner- accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. EXHIBIT 6 (d) The person or persons, partnership, company, firm, Limited Liability Company, association, corporation, or other business entity to whom the Contract is awarded shall, within ten (10) days after such award, sign the required Contract with the Owner and provide the necessary surety bonds and evidence of insurance as required under the Contract Documents. No Contract shall be binding on the Owner until it has been approved as to form by the City Attorney, executed for the Owner by the City Manager, the performance and payment bonds and evidence of insurance have been furnished as required by the Contract Documents, and the fully executed contract has been delivered to the Contractor. (e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or as soon thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid proposal and the Owner may rescind the Contract award and collect or retain the proceeds of the bid security. By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re- advertise for bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re- advertisement shall be the bid referred to in this Paragraph. ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK 12.1 UNCOVERING OF WORK (a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to requirements specifically expressed in the Contract Documents, the Work must, if required in writing by the Architect /Engineer, be uncovered for the Architect /Engineer's observation and be replaced at the Contractor's expense without change in the Contract Time. (b) If a portion of the Work has been covered which the Architect /Engineer has not specifically requested to observe prior to it being covered, the Architect /Engineer may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK (a) The Contractor shall promptly correct Work rejected by the Architect /Engineer as failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect /Engineer's services and expenses made necessary thereby. EXHIBIT 6 (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Architect /Engineer or the Owner to do so unless the Owner has previously given the Contractor a written acceptance or waiver of the defect or nonconformity. The Contractor's obligation to correct defective or nonconforming Work remains in effect for: (1) one year after the date of Substantial Completion of the Work or designated portion of the Work; (2) one year after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.8(a); or (3) the stipulated duration of any applicable special warranty required by the Contract Documents. (c) The one -year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions of the Work performed, repaired, or corrected after Substantial Completion by the period of time between Substantial Completion and the actual completion of the Work. (d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work and termination of this Contract. The Owner shall give notice to the Contractor promptly after discovery of a defective or nonconforming condition in the Work. The one -year period stated in Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct latent defects or nonconformities in the Work, which defects or nonconformities could not have been discovered through reasonable diligence by the Owner or the Architect /Engineer at the time the Work was performed or at the time of inspection for certification of Substantial Completion or Final Completion. The one year period also does not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the one year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. (f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the Architect /Engineer, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work within a reasonable time fixed by written notice from the Architect /Engineer, the Owner may remove or replace the defective or nonconforming Work and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and equipment at auction or at private sale and shall account for the proceeds after deducting costs and damages that should have been borne by the Contractor, including compensation for the Architect /Engineer's services and expenses made necessary as a result of the sale. If the proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the deficiency, the Contractor shall pay the difference to the Owner. EXHIBIT 6 (g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or separate contractors, whether the construction is completed or partially completed, that is caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. (i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article 12 to the same extent as Work originally performed or installed. 12.3 ACCEPTANCE OF NONCONFORMING WORK The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with the requirements of the Contract Documents instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether or not final payment has been made. ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION 13.1 FINAL COMPLETION OF CONTRACT The Contract will be considered completed, except as provided in any warranty or maintenance stipulations, bond, or by law, when all the Work has been finally completed, the final inspection is made by the Architect /Engineer, and final acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to the expiration of the specified warranty period provided for in the Contract Documents, the Architect /Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect /Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect /Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: EXHIBIT 6 (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (2) A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Contractor has abandoned the Work. (5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work. (6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract Documents or to comply with any written orders given by the Architect /Engineer or the Owner as provided for in the Contract Documents. (7) Failure or refusal of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature, the correction of which has been directed in writing by the Architect /Engineer. (8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on the Owner in connection with the construction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within twenty (20) days after the written notice of termination for cause has been served upon the Contractor and the surety or its authorized agents, assume the obligations of the Contractor for the Work or that portion of the Work which the Owner has ordered the Contractor to discontinue and may: (1) perform the Work with forces employed by the surety; (2) with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or (3) with the written consent of the Owner, tender and pay to the Owner in settlement the amount of money necessary to finish the balance of uncompleted Work under the Contract, correct existing defective or nonconforming Work, and compensate the Owner for any other loss sustained as a result of Contractor's default. EXHIBIT 6 In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Contractor's place in all respects, and the amount of funds remaining unpaid under the Contract shall be paid by the Owner for all Work performed by the surety or the replacement contractor in accordance with the terms of the Contract Documents, subject to any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the termination shall become due and payable to the surety as the Work progresses, subject to all of the terms, covenants, and conditions of the Contract Documents. If the surety does not, within the time specified in Subparagraph 13.3(b), exercise its obligation to assume the obligations of the Contract, or that portion of the Contract which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Contractor agrees that the Owner shall have the right to take possession of or use any or all of the materials, plant, tools, equipment, supplies, and property of every kind provided by the Contractor for the purpose of the Work, and to procure other tools, equipment, labor, and materials for the completion of the Work, and to charge to the account of the Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred by the Owner to complete the Work shall be deducted by the Owner out of the balance of the Contract Sum remaining unpaid to or unearned by the Contractor. The Contractor and the surety shall be liable to the Owner for any costs incurred in excess of the balance of the Contract Sum for the completion and correction of the Work, and for any other costs, damages, expenses (including but not limited to additional fees of the Architect /Engineer and attorney's fees), and liquidated or actual damages incurred as a result of the termination. (d) The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner. (e) The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination for convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for convenience to the Contractor. Upon the Contractor's receipt of such written notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Contractor EXHIBIT 6 shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the Contractor for lost or anticipated profits. 13.4 TEMPORARY SUSPENSION OF THE WORK (a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon written notice to the Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or (4) other unforeseen conditions or circumstances. (b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Documents in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly made by the Contractor under Subparagraph 4.3 of these General Conditions: (1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the temporary suspension as determined by the Architect /Engineer and the Owner; (2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable costs of properly protecting any Work that is finished or partially finished during the period of the temporary suspension (no profit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the Project site and then return it to the Project site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment shall be due if the equipment is moved to another Project site of the Owner. EXHIBIT 6 ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain legally responsible for all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 14.3 WRITTEN NOTICE Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. EXHIBIT 6 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees. 14.9 NONDISCRIMINATION As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. The Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. § §12101- 12213, as amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. EXHIBIT 6 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a minimum of five (5) years following completion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise b�etwce�n the 1'O FP document, supplier (crin:s drawings, s ecilucations. construction document or contract; the terms and conditions set forth in the City of Denton General Conditions and the negotiated contract shall prevail. EXHIBIT 6 Exhibit E City of Denton Special Terms and Conditions EXHIBIT 6 ADDITIONAL TERMS AND CONDITIONS Contract Term It is the intention of the City of Denton to award a contract for construction of the project as described in the drawings and specifications. Materials and services undertaken pursuant to this RFP will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. The services shall be accomplished per the Scope of Work as identified in Section III, the Procurement Process and Procedures as outlined in Section II, and shall conform to the requirements contained in the Technical Specification in Exhibit 2, and Technical Drawings in Exhibit 3. The Contract shall commence upon the issuance of a Notice to Proceed by the City of Denton and shall automatically expire upon completion of the work and acceptance by the City of Denton. Pricing Only firm, lump sum pricing with no escalation will be accepted for this project. Price Adjustments Price adjustments will not be allowed for this project unless a change in scope is approved that increases or decreases the amount of work required. Requests or proposals for changes in scope must be submitted in writing with documentation that provides justification for the change and supporting evidence that describes the basis for the cost change. Upon receipt of such request, the City of Denton reserves the right to either: accept the proposed change as competitive with the general market price at the time and issue appropriate authorizations or reject the increases within 30 calendar days after receipt of a properly submitted request. No work shall be undertaken on a proposed change until authorized by the City of Denton in the form of a Purchase Order change and /or other documentation appropriate to amending the contract. The request can be sent by e -mail to: purchasingkcityofdenton.com Or mail to: Or call: City of Denton City of Denton Purchasing Attn: Purchasing Manager (940) 349 -7100 RFP # 4811 901B Texas Street Denton, Texas 76209 The City of Denton reserves the right to accept, reject, or negotiate any proposed price changes. Quantities The quantities indicated on the drawings and in the Technical Specification are believed to be accurate but shall be considered only as estimates. The project requires complete and functional construction of the substation perimeter fence in accordance with the dimensions presented on the project documents. Differences between the quantities of material required and the estimated quantities will not be considered as basis for a change in the price for the project. In submitting a proposal, the proposer is stating that he has reviewed the project drawings and specifications and understands their intent and has checked the quantities and dimension and is asserting that the proposal is intended to account for all conditions and quantities to complete the project as described in the plans and specification. EXHIBIT 6 Substitutions Substitutions are not permitted without the written approval of the City of Denton Purchasing Department. For substitutions prior to the proposal deadline, this will be accomplished with a submittal to the Architect /Engineer, and approval by the City representative, and issuance of a written addendum. For substitutions after contract award, this will be accomplished with a submittal request to the Architect /Engineer, and approval by the City representative, and issuance of a written contract change order. Product Changes Durin Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to the Project Manager with the RFP number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be rejected and must be removed from the site at the supplier's expense. Products that have been installed shall be replaced at the supplier's expense. Patent Rights The contractor agrees to indemnify and hold harmless the City from any claim involving patent right infringement or copyrights on goods supplied. Asbestos Free Materials The contractor shall provide asbestos -free materials as represented by the Manufacturer's "Materials Safety Data Sheets" Rights to Data Documents and Computer Software Government Entity Ownershi Any software, research, reports studies, data, photographs, negatives or other documents, drawings or materials prepared by contractor in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be delivered to the City by the contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of contractor's obligations under this contract without the prior written consent of the City; provided, however, that contractor shall be allowed to use non - confidential materials for writing samples in pursuit of the work. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. Adding New Products or Services to the Contract after Award Following the Contract award, ADDITIONAL services of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to successful Contractor to provide a proposal on the additional services and shall submit proposal to the City as instructed. All submitted prices are subject to negotiation in accordance with Texas Government Code 2254. The City may accept or reject the proposal, and may issue a separate RFQ for the services requested, after rejecting some, or all, of the proposal. The services covered under this provision shall conform to the statement of work, specifications, and requirements as outlined in the request. Contract changes shall be made in accordance with Local Government Code 252.048. EXHIBIT 6 Samples Respondents must make samples available in accordance with the specification and upon request by the City of Denton prior to award with no costs to the City. Venue This agreement shall be governed by the law of the State of Texas and venue for its construction and enforcement shall lie in the courts of Denton County, Texas. Silence of S ecifications The apparent silence of these specifications as to any detail or the apparent omission from it of a detailed description concerning any point, shall be regarded as a meaning that the only best commercial practices are to prevail. All interpretations of these specifications shall be made on the basis of this statement. Prevailing Wage Rates In accordance with Texas Government Code 2258, the awarded contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). Notwithstanding any other provision of this Contract, the awarded contractor hereby represents and warrants that the contractor shall pay to each of its employees a wage not less than what is currently known as the "Federal Minimum Wage" and any increase or amendments thereto. Furthermore, contractor shall produce proof of compliance with this provision by contractor to the City. The City shall withhold payments due to contractor until contractor has complied with this provision. Prior to any payment being made for work satisfactorily completed and accepted, contractor shall submit wage rate affidavits with its billing documents affirming that all employees have been paid not less than the current "Federal Minimum Wage ". Special Permitting Requirements The awarded contractor shall work with identified City staff to obtain the necessary permits for construction of the project. Contracts and Bonds Successful awarded contractor will be required to sign original contract and submit a performance and payment bonds for 100 percent of the total proposal submitted before work is to commence. The contractor shall assume all costs in increasing the bond limits if change orders are formally approved. Bonds shall be in accordance with the V.T.C.A Government Code Section 2253.021, as amended. The City shall normally return the proposal bonds within ten (10) working days after the proposal due date, except for the three top ranked firms. The three top ranked firms will be retained by the City until the required contract and bonds have been executed, after which they shall be returned. EXHIBIT 6 SPECIAL CONDITIONS FOR GRANT FUNDED PURCHASES DAVIS BACON COMPLIANCE REQUIREMENTS The Contractor shall comply with the requirements of the Davis -Bacon Wage Act and the Wage Rate Requirements under Section 1606 of the Recovery and Reinvestment Act (the Act) and shall indemnify the City from liability for any failure to pay wages in compliance with the Act. The contractor shall ensure that all laborers and mechanics employed in the performance of the project for which the assistance is provided, including those employed by subcontractors, are paid wages at rates not less than those prevailing on similar work in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the `Davis - Bacon Act'). The bidder who is awarded the Contract shall pay the wage rate in effect as of the date the Contract is awarded. The Contractor shall cooperate with the City by providing information in the form and frequency requested by the City concerning the type of work performed, the number of hours worked, and the hourly rates paid for the various types of work performed by all workers on the Project. The Contractor shall allow City staff to conduct on -site wage interviews and shall post information concerning the Act as requested by the City. All contractors and subcontractors must comply with Davis -Bacon Wage Rates and the Wage Rate Requirements of Section 1606 of the Recovery and Reinvestment Act. The Wa a Rate Requirements, as stated in the Recovery and Reinvestment Act Grant are as follows: THIS AWARD TERM IS APPLICABLE TO ARRA AWARDS WHEN WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF 1'lhE RECOVERY ACT TERM IS APPLICABLE. 77115 %4 IYA RD TERM IS ALSO APPLICABLE TO SUBG1CAN:T!; A .ND 'OJ' TRACT V. Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor" shall mean "Recipient" and the term "Subcontractor" shall mean "Subrecipient or Subcontractor" per the following definitions. Recipient means the organization, individual, or other entity that receives an award from DOE and is financially accountable for the use of any DOE funds or property provided for the performance of the project, and is legally responsible for carrying out the terms and conditions of the award. Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations). Davis -Bacon Act (a) Definition. — "Site of the work" — (1) Means- - (i) The primary site of the work. The physical place or places where the construction called for in the award will remain when work on it is completed; and (ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is— (A) Located in the United States; and (B) Established specifically for the performance of the award or project; EXHIBIT 6 (2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided- (i) They are dedicated exclusively, or nearly so, to performance of the award or project; and (ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of this definition; (3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool yards of a Contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular Federal award or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier which are established by a supplier of materials for the project before opening of bids and not on the Project site, are not included in the "site of the work." Such permanent, previously established facilities are not a part of the "site of the work" even if the operations for a period of time may be dedicated exclusively or nearly so, to the performance of a award. (b) (1) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Any wage determination incorporated for a secondary site of the work shall be effective from the first day on which work under the award was performed at that site and shall be incorporated without any adjustment in award price or estimated cost. Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work. (2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section l (b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (e) of this article; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such period. (3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe benefits in the wage determination for the classification of work actually performed, without regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. (4) The wage determination (including any additional classifications and wage rates conformed EXHIBIT 6 under paragraph (c) of this article) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (c) (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the award shall be classified in conformance with the wage determination. The Contracting Officer shall approve an additional classification and wage rate and fringe benefits therefore only when all the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination. (ii) The classification is utilized in the area by the construction industry. (iii)The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by the Contracting Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 20210 The Administrator or an authorized representative will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. EXHIBIT 6 (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Rates of Wages The minimum wages to be paid laborers and mechanics under this award involved in performance of work at the project site, as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the pertinent locality, are included as an attachment to this award. These wage rates are minimum rates and are not intended to represent the actual wage rates that the Contractor may have to pay. Payrolls and Basic Records (a) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and last 4 digits of the social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b) (2) (B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found, under paragraph (d) of the article entitled Davis -Bacon Act, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section l(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (b) (1) The Contractor shall submit weekly for each week in which any award work is performed a copy of all payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph (a) of this article. This information may be submitted in any form desired. Optional Form WH -347 (Federal Stock Number 029 - 005- 00014 -1) is available for this purpose and may be purchased from the =- Superintendent of Documents U.S. Government Printing Office Washington, DC 20402 The Prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. EXHIBIT 6 (2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the award and shall certify — (i) That the payroll for the payroll period contains the information required to be maintained under paragraph (a) of this article and that such information is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the award during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR Part 3; and (iii)That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the award. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by subparagraph (b)(2) of this article. (4) The falsification of any of the certifications in this article may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code. (c) The Contractor or subcontractor shall make the records required under paragraph (a) of this article available for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit required records or to make them available, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Withholding of Funds The Contracting Officer shall, upon his or her own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this award or any other Federal award with the same Prime Contractor, or any other federally assisted award subject to Davis -Bacon prevailing wage requirements, which is held by the same Prime Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the award. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the award, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Apprentices and Trainees (a) Apprentices. EXHIBIT 6 (1) An apprentice will be permitted to work at less than the predetermined rate for the work they performed when they are employed (i) Pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship and Training, Employer, and Labor Services (OATELS) or with a State Apprenticeship Agency recognized by the OATELS; or (ii) In the first 90 days of probationary employment as an apprentice in such an apprenticeship program, even though not individually registered in the program, if certified by the OATELS or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. (3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(1) of this article, shall be paid not less than the applicable wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (4) Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. (5) Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (6) In the event OATELS, or a State Apprenticeship Agency recognized by OATELS, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (b) Trainees. (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer, and Labor Services (OATELS). The ratio of EXHIBIT 6 trainees to journeymen on the job site shall not be greater than permitted under the plan approved by OATELS. (2) Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed in the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate in the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the OATELS shall be paid not less than the applicable wage rate in the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate in the wage determination for the work actually performed. (3) In the event OATELS withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (4) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this article shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended and 29 CFR Part 30. Compliance with Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by reference in this award. Subcontracts (Labor Standards) (a) Definition. "Construction, alteration or repair," as used in this article means all types of work done by laborers and mechanics employed by the construction Contractor or construction subcontractor on a particular building or work at the site thereof, including without limitation— (1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off -site; (2) Painting and decorating; (3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work; (4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis Bacon Act of this award, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the "site of work" definition; and EXHIBIT 6 (5) Transportation of portions, of the building or work between a secondary site where a significant portion of the building -or work is constructed, which is part of the "site of the work" definition in paragraph (a) (1) (ii) of the Davis -Bacon Act article, and the physical place or places where the building or work will remain (paragraph (a) (1) (i) of the Davis Bacon Act article, in the "site of the work" definition). (b) The Contractor or subcontractor shall insert in any subcontracts for construction, alterations and repairs within the United States the articles entitled— (1) Davis -Bacon Act; (2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is included in this award); (3) Apprentices and Trainees; (4) Payrolls and Basic Records; (5) Compliance with Copeland Act Requirements; (6) Withholding of Funds; (7) Subcontracts (Labor Standards); (8) Contract Termination – Debarment; (9) Disputes Concerning Labor Standards; (10) Compliance with Davis -Bacon and Related Act Regulations; and (11) Certification of Eligibility. (c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor performing construction within the United States with all the award articles cited in paragraph (b). (d) (1) Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting Officer a completed Standard Form (SF) 1413, Statement and Acknowledgment, for each subcontract for construction within the United States, including the subcontractor's signed and dated acknowledgment that the articles set forth in paragraph (b) of this article have been included in the subcontract. Within 14 days after the award of any subsequently awarded subcontract the Contractor shall deliver to the Contracting Officer an updated completed SF 1413 for such additional subcontract. (e) The Contractor shall insert the substance of this article, including this paragraph (e) in all subcontracts for construction within the United States. EXHIBIT 6 Contract Termination -- Debarment A breach of the award articles entitled. Davis -Bacon Act, Contract Work Hours and Safety Standards Act -- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Davis -Bacon and Related Act Regulations, or Certification of Eligibility may be grounds for termination of the whole award or in part for the Recovery Act covered work only, and for debarment as a Contractor and subcontractor as provided in 29 CFR 5.12. Compliance with Davis -Bacon and Related Act Regulations All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are hereby incorporated by reference in this award. Disputes Concerning Labor Standards The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes and Appeals as defined in 10 CFR 600.22. Disputes within the meaning of this article include disputes between the Contractor (and any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification of Eligibility (a) By entering into this award, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government awards by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (b) No part of this award shall be subcontracted to any person or firm ineligible for award of a Government award by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Approval of Wage Rates All straight time wage rates, and overtime rates based thereon, for laborers and mechanics engaged in work under this award must be submitted for approval in writing by the head of the contracting activity or a representative expressly designated for this purpose, if the straight time wages exceed the rates for corresponding classifications contained in the applicable Davis -Bacon Act minimum wage determination included in the award. Any amount paid by the Contractor to any laborer or mechanic in excess of the agency approved wage rate shall be at the expense of the Contractor and shall not be reimbursed by the Government. If the Government refuses to authorize the use of the overtime, the Contractor is not released from the obligation to pay employees at the required overtime rates for any overtime actually worked. BUY AMERICAN ACT COMPLIANCE REQUIREMENTS The Contractor acknowledges to and for the benefit of the City of Denton that it understands the goods and services under this Agreement are being funded with monies made available by the American EXHIBIT 6 Reinvestment and Recovery Act of 2009 (Recovery Act) (or are being made available for a project being funded with monies made available by the Recovery Act) and section 1605 of such law contains provisions commonly known as "Buy American." The Buy American requirement prohibits the use of Recovery Act funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States ( "Buy American requirement ") including iron, steel, and manufactured goods provided by the Contractor pursuant to this Agreement. The Contractor hereby represents and warrants to and for the benefit of the Department of Energy (DOE) grantee that (a) the Contractor has reviewed and understands the Buy American requirement, (b) all of the iron, steel, and manufactured goods used in the project will be and /or have been produced in the United States in a manner that complies with the Buy American requirement, unless an exception to the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support an exception to the Buy American requirement, as may be requested by the DOE grantee or DOE. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the DOE grantee to recover as damages against the Contractor any loss, expense or cost (including without limitation attorney's fees) incurred by the DOE grantee resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part from DOE). Neither this paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the DOE grantee. The requirements for the Buy American Act as stated in the Recovery and Reinvestment Act Grant are as follows: REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) THIS AWARD TERM IS APPLICABLE TO ANY RECOVERY ACT FUNDS FOR CONSTR UCTION, AL TERATION, MAINTENANCE, OR REPAIR OF A PUBLIC B UILDING OR PUBLIC WORK AND THE TOTAL PROJECT VALUE IS ESTIMATED LESS THAN $7,443,000. THIS AWARD TERM ALSO APPLIES TO ALL SUBGRANTSAND CONTRACTS. a. Definitions. As used in this award term and condition— (1) Manufactured good means a good brought to the construction site for incorporation into the building or work that has been - (i) Processed into a specific form and shape; or (ii) Combined with other raw material to create a material that has different properties than the properties of the individual raw materials. (2) Public building and public work means a public building of, and a public work of, a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi - State, regional, or interstate entities which have governmental functions). These buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers; mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction, alteration, maintenance, or repair of such buildings and works. EXHIBIT 6 (3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbons, and may include other elements. b. Domestic preference. (1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111 - -5), by requiring that all iron, steel, and manufactured goods used in the project are produced in the United States except as provided in paragraph (b)(3) and (b)(4) of this section and condition. (2) This requirement does not apply to the material listed by the Federal Government as follows: None [Award official to list applicable excepted materials or indicate "none "] (3) The award official may add other iron, steel, and /or manufactured goods to the list in paragraph (b)(2) of this section and condition if the Federal Government determines that- - (i) The cost of the domestic iron, steel, and /or manufactured goods would be unreasonable. The cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the cost of the overall project by more than 25 percent; (ii) The iron, steel, and /or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (iii)The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of inapplicability of Section 1605 of the Recovery Act. (1) Any recipient request to use foreign iron, steel, and /or manufactured goods in accordance with paragraph (b) (3) of this section shall include adequate information for Federal Government valuation of the request, including— (A) A description of the foreign and domestic iron, steel, and /or manufactured goods; (B) Unit of measure; (C) Quantity; (D) Cost; (E) Time of delivery or availability; (F) Location of the project; (G) Name and address of the proposed supplier; and (H) A detailed justification'of the reason for use of foreign iron, steel, and /or'manufactured goods cited in accordance with paragraph (b) (3) of this section. (i) A request based on unreasonable cost shall include a reasonable survey of the market and a completed cost comparison table in the format in paragraph (d) of this section. (ii) The cost of iron, steel, and /or manufactured goods material shall include all delivery costs to the construction site and any applicable duty. (iii)Any recipient request for a determination submitted after Recovery Act funds have been obligated for a project for construction, alteration, maintenance, or repair shall explain why the recipient could not reasonably foresee the need for such determination and List EXHIBIT 6 could not have requested the determination before the funds were obligated. If the recipient does not submit a satisfactory explanation, the award official need not make a determination. (2) If the Federal Government determines after funds have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery Act applies, the award official will amend the award to allow use of the foreign iron, steel, and /or relevant manufactured goods. When the basis for the exception is non - availability or public interest, the amended award shall reflect adjustment of the award amount, redistribution of budgeted funds, and /or other actions taken to cover costs associated with acquiring or using the foreign iron, steel, and /or relevant manufactured goods. When the basis for the exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redistribute budgeted funds by at least the differential established in 2 CFR 176.110(a). (3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act applies, use of foreign iron, steel, and /or manufactured goods is noncompliant with section 1605 of the American Recovery and Reinvestment Act. d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison ..... ......... Cost Description Unit of Measure Quantity (dollars)* Item 1. Forei n steel, iron, or manufactured ood ..................... ..............r.............�.� .�.� .. , or manufactured good — ._..m. ...Domestic steel, iron „_... _w.._. Item 2: Forei n steel, iron or manufactured ood _ ,._.��ww. g Domestic steel, iron, or manufactured Food ........ ... -- mm - -- ------- - - - --- name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. EXHIBIT 6 Exhibit F Pa ment and Performance Bonds EXHIBIT 6 PERFORMANCE BOND S I ATE OF TEXAS COUN I Y OF DENTON 7.130,11MR14WINZ. KNOW AL 1 EN DYTj4ESj1,' Tlco whose address is Liberty M al U8 a kt COVPM36011 Ort?Iiiizetl Mid existing onder the inNys of the Strmte 0 08, and folly authorized to transact business in the Stift ol'Texati, as Surety, are held arid firmly bound unto the City of Denton, a municipal corporation tirg,Rnized atuf eximilig ull(ler uJrc Jjjw$ State W,,lCxaq, hereinafter called Owner, in die penal sum of'SEVENI, i IUNDRED AND F1l"'l'YSl1V" �N'rrl(')USAND, AND SEVENTY-THREE DOLLARS AND NO CENTS mjj Jajwj'tfl Money cif the (hii(ed'States, to be paid in Denton County, Texas, for the payment of Which sum well mid 11111' �V 10 bra lil,Ade,'we hereby bilid ourselves, our heirs, executors, administrators, successors, alld assignsjoirit(y and severa« ➢y, firijily by these presimls. This Bond shall automatically be increased by the 0MOU"t of shay Change Order or 18'Uj)j)lell1e1Wd Agreement, which increases the Conti-act price, but in no event shall 11 Order 01' Suj)J'Actllcnlai Agrucinciii, which reduces the Contract price, decrease the penal sum of this Hcmd' THE OB11GATION TO PAN' SAME is conditioned as follows; Whereas, the Principal entered illi(i aW cerlaiij ('ojijrjct, i(jetqi('jexl by Ordinance, with [lie City of Denton, the Owner, dWcdjbKjtf)'ajy of,' gjq,� gjjj KI L0_:1aC0j)y()j'w11i6 is her(qoalfached and made apart lierool", for the Construction el vices stli'lod withill Cunt raclfl,srsso Construct i0l, ot"City (ti" Diciton Mack Park, North Lakes, and Roberts Restroorn Buildings. NW 1111 luiRl +010", if the Principal shall well, truly and faithfully perform and fulfill all of the Underlakings, covcjjajjts, jel,sils, cojiditions and agreements of said Contracl in accordance with the Plans, Specifications and conlract Docunienis during the original term thereof and any extensioio thereof whiell may be granted by the Owner, witil, tad- wilhotit notice to the Surely, and during the lire ofimy gwirflilly or won-anty I'mitured litider and stroll also well alid buly perform and fulfill all the undertakings, covenants, It ins, conditions aj)d agreemelits ofi'lny and all duly oulljorized' modifications off'said Conti-act that nitty hereafter be Illkldc, lloficV (Awbic), lllodifica600is to the Surety being hereby waived; wid. if (lie Principal shall repair and/or wphwe all delewu duo to ('11Wly 111"11crials and w("Oollanship Ifiat appear within a period of two (2) years from the daw of collipletion and final acceptance ol'tile, Work by the Owner; and, if the Principal shall fully indemnify alid saw: harusloss tile Owner liom all costs and dainagcs which Owner may suffer by reason of failure to so poll'orlil horein and shall l"I'llY WilillAls'se and repay Owner all outlay and expense which the Owner may incur in lllsljt ing good ally defatilt or deficiency, then this obligation shall be void, otherwise, it shall remain in full ral-ce awl efiict. EXHIBIT 6 This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the Stale of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such surety, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in 1 topics, each one of which shall be deemed an original, this the day of ATTEST: BY ATTEST: BY. /-4' , w Sandra L. Ham, Witness PRINCIPAL BY: CXT Incorporated PRESIDENT SUR1'TY: Liberty Mutual Insurance Company BY: ATTORNEY-4il 1 °AC t" tl rty L. Joirrton The Resident Agent of the Surety in Denton Cowriy, Texas for delivery of notice and service of the process is: NAME: Liberty Mutual Surety, Attn: Lacasha Grimes STREET ADDRESS: 8350 N. Central Expressway, Suite 850, Dallas, TX 75206 (NOTE: haler of Paynrert! Bard nrttsl he dale of ('anlraci. if Resident Ag( -itt is not a eorporaliott, glue ct persons nante.) EXHIBIT 6 ACKNOWLEDGMENT BY SURETY STATE OF Missollf-i City of St. Louis . ... I SS. On this day of . .. . . ......... -I,--.- , � -- -111 , bellore nic personally appear cd a -in-Fact of Nnc,y Johnson ".. . . .......... 11— known to me to be the Attorney Liberty Mutual Insurance Company .... . ..... .. [lie corporation that execilled the widlill iii.4ti'llillcllt,,ui(it(,kiiowle(ige(I to me that such corporat-ion ......... executed tile swile. IN Wl'l`NESS WHERI-',()F, I have hereunto set lily timid wid 0ixed illy offickd scd, at illy offilm in the Aol-cs;kl County, the day and yell- in this eel-tific'.11C lust above written. My Commission Expires: ki=20,2018 (Seal) Notary Put-Alc, %Qcjt Sk,Ak,l of mh,,�xnpj St, LOU],$ City C o i ri rt,) I '14 3 e /' S-02301GEEF 2/98 I)AA&O v JOA 4si IC Fnmik Noy aly Public ill the State of Missouri City of St, 1,ollis Commission #14395672 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those if herein, and they have no authority to hind the Company except In the manner and to the extent herein stated. Certificate No. 7012362 I 1120111#1121 till I I IVA "b"'U"141,1014 1111 ON 'I KNOWN ALL PERSONS BY THESE PRESENTS: ThatAmerican Fire & Casualty Company and The Ohio Casualty Insurance Company are corporations duly organized under the laws of the State of Now Hampshire, that Liberty Mutual Insurance Company Is a corporation duly organized under the laws of the State of Massachusetts, and West American Insurance Company is a corporation duly orq,nnJvxI undue Jfvl 11W5 of the Slate of Iryhw) (fier& follwAvoly Called I110 'Companjes'I, pursig"11 to and by awhn6ly torero sO forlb, dow', horoby name, corwituto and appoint, IL wm. ij(r e R, Fr a ik NI-1alo, q'y'J )0raw)0qmqI:@AP5'1A Sandra L. Ham -111111111111 ........ . .... . ............. ............... ... . ....... .. .... ..... .. .......... . .. . . .... . ...... all of the city of-�jt- _Louis. state of MO each individually If there be more than one named, Its true and lawful attorney-in-fact to make, execute, seal, acknowledge ffif Apqn j.rn-pniq qj4 q�211 IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 81h —day or .. June American Fire and Casualty Company The Ohio Casualty Insurance Company Uborty Mutual Insurance Company West Aillerican Insurance Company Its By: �"V ' .. . ...... ............... David M. Car, smoant Secretary 199 0E ...... ..... . �' American Fire and Casualty Company The Ohio Casualty Insurance Company Uborty Mutual Insurance Company West Aillerican Insurance Company Its By: �"V ' .. . ...... ............... David M. Car, smoant Secretary > S M!121�111111 M =K7. EXHIBIT 6 Bond No, 019050344 PAYMEM BOND EXHIBIT 6 PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in Denton County, State of Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be. delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19 -1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in 1 copies, each one of which shall be deemed an original, this the day of _ ATTEST: PRINCIPAI,, CXT Incorporated BY: PRESIDENT _ SURETY Liberty Mutual Insurance Company ATTORNEY- IN- FACA Nancy L, Johnson "rile Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is: NAME: Liberty Mutual Surety, Attn: Lacasha Grimes STREET ADDRESS: 8350 N. Central Expressway, Suite 850, Dallas, TX 75206 (NOTE, Date. of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name.) EXHIBIT 6 ACKNOWLEDGMENT BY SURETY STNIT', 011P Missouri "I'll" ............. - - ity of S(. Lows SS. C 01i this day of bdore me personally known to nie to be (lie Attoriiey-iii-Fm I of Liberty Mutual Insurance Company , the corponation executccl the w i i i n's—h-t — t e i (—,caul ac k i"o wI, e(-fg" e ("fioil let 1, , t 's, i ic" —h-( o i .p....o......r.. . a...L. i.. — on - - - ex-- e- -c---u--- t-e---d --- - the sane. ---- IN Wrl'NESS WHEREOF, I have hereunto set lily llwld wid Alixed lily offileNd SCA, at illy offi•c in Ille Abl-es dd County, the day slid year in this •ertifleale ru-st above written. My Commission Expires: (SCA) W', .0l -N-ot"ary s oiGSl,c fk,00(v Seal ?fl, LOUD cl, I1 y Commission # 1,1395672 My CoMinlo;ion Explros 4,p u; 20, 7018 S-02301GEEF 2198 ................... N inty Public in t lie State of Missouri City 01• St. IA)1liS Commission # 14395672 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT 15 PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except In the manner and to the extent herein stated, Certificate No. L012363 is 1g&Wj1 I L1 f 1. III I ; I 1� KNOWN ALL PERSONS BY THESE PRESENTS: Thai American Fire & Casualty Company and The Ohio Casualty Insurance Company are corporations duly organized under the laws of the State of New Hampshire, that Liberty Mulual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts, and WestAmedGan Insurance Company is a corporation duly organized under the laws of the State of Indiana (herein collectively called the 'Companies'), pursuant to and by authority herein set forth, does hereby name, constitute and appoint, . . . ..... Arm R Friink,,Karoo L� R I r �Nq 0,do i soi J!kq�e4 (kj3e(,Wn,an, Sandra L. Ham EMEEMMEM EXHIBIT 6 Exhibit G Insurance Requirements and Contractor Documentation EXHIBIT 6 r DATE (MM /DD/YYYY) A RLIO CERTIFICATE OF LIABILITY INSURANCE /6/21/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME; SixrPPGgSPlalce, Suite 400 PHONE _ NC A1P No InxL1 (ANC APO) Pittsburgh, PA 15222 MARL Pittsburgh .cerlrequest @marsh.com nfarafaEW.. INSURERS) AFFORDING COVERAGE NAIC # 051823-- Cas -15 -16 CXT INSURER A . Liberty Surplus Insurance Corporation 10725 ......... ......... INSURED INSURER B American Guarantee & Liability Ins Co 26247 CXT, Incorporated __ ...... 3808 North Sullivan Rd. INSURER C : Sentry Casualty Company 28460 Spokane, WA 99216 P INSURER D INSURER E INSURER F : COVERAGES CERTIFICATE NUMBER: CLE- 004988470 -01 REVISION NUMBER:2 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR Aim 80BR „ POLICY EFF POUCY EXP LTR TYPE OF INSURANCE III Wyn POLICY NUMBER MMPODI'YYYY). MWDCSJ"A..'Yk.Y LIMITS ....._.- .�....�,.... _... A X COMMERCIAL GENERAL LIABILITY GLHV318842 -3 01/01/2015 0110112016 EACH OCCURRENCE $ 1,001,010 CLAIMS -MADE M OCCUR pE f M E ct Ir uffulcol $ ........ 1,000 000 ... ..... ....... MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 1,000,000 ........ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY X � PRO- � LOC PRODUCTS - OMP/OP AGG $ 2,000,000 C OTHER POLICY AGGREGATE $ 10,000,000 «wawa AUTOMOBILE LIABILITY COMBINE U I0NCaLE LIMIT $ (Ea acu.Idt nt) .,,,, , ANY AUTO BODILY INJURY (Per person) $ . ALL OWNED SCHEDULED .......... --- ...... AUTOS AUTOS BODILY INJURY (Per accident) $ . HIRED AUTOS NNONNOSWNED P R PER!*'[JkMAGE. $ _ C rae'ggci YPntl $ B X UMBRELLA LIAB X OCCUR AUC- 9378203 -11 01/01/2015 01/01/2016 EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS -MADE "AGGREGATE $ 5,000,000 DED RETENTION $ $ ...... _ - ...... �. R OTH- C WORKERS COMPENSATION 90- 14714 -01 (AOS) 01/0112015 01/01/2016 X STPEATUTE FR, C ( ®PROPRIETOR/PARTNER/EXECUTIVE U ? 1YN, NIA no t Stop Gap Employers lLiability 01101/2015 01I01I2016 e �- EACH ACCIDENT PLOYeE 1,000,000 If yyes, describe under ( for OH, ND, WA, WY & Canadian Prov. 1,000,000 DESCRIPTION OF OPERATIONS below E L DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) The City of Denton, its Officials, Agents, Employees, and Volunteers is /are included as an Additional Insured under the General Liability where required by written contract. This insurance is primary and non- contributory over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract. Waiver of Subrogation is applicable where required by written contract. The Umbrella policy is excess over the captioned General Liability and Workers Compensation /Employers Liability policies. The Umbrella policy is excess over Auto policy #AS2641443762015 policy term 1/1/15 to 1/1/16 CSL $1,000,000. CERTIFICATE HOLDER CANCELLATION State of Texas SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Denton THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 9018 Texas Street ACCORDANCE WITH THE POLICY PROVISIONS. Denton, TX 76209 AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Manashi Mukherjee µ @ 1988 -2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD EXHIBIT 6 Client #: 15056 LBFOST DATE (MM /DD/YYYY) ACORD. CERTIFICATE OF LIABILITY INSURANCE 8/25/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. ..... ........ I OR ANT: I... 'flcate holder is an ADDITIONAL INSURED, the poli l .. If the cep' � cy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s), PRODUCER arc'" Frank Parnpeno HDH Pittsburgh P &C FGDNI 412 391 -7300 I I _ I c NQ} ( X12 391 7322 210 Sixth Avenue, 30th Floor EMAIL — ..... AD DRF s s: I -p a rn pia a O hdlg g ro a p,O orn Pittsburgh, PA 15222 INSURERA. Liberty Mutual F re In lNGCOVERAGE ^� N5 412 391 -7300 Alca _ ...........w . _. Insurance C 2303 INSURED INSURER B : CXT, Inc. ............ ... _....__ __. ..... _._._ ............... INSURER C : 415 Holiday Drive ...... ......... ..........._ . INSURER D : Pittsburgh, PA 15220 .....,, ......... ....... ......... . INSURER E . INSURER F! COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. fSR TFfi TYPE OF INSURANCE ...................................................... ADDL INSR VBB'�i... WVrr d POLICY NUMBER ,e _060&EFF... (MM/DD/YYYY) POLICYEXP (MWDDIYYYY) ., ®„ LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY � ... .,, I "y Flu^t sarurnwq.$ ...... $ '',...... CLAIMS -MADE F_ OCCUR MED EXP (Any one Person) _ $ PERSONAL & ADV INJURY $ .,.._.. ---- — ------ - --- - ---- GE.NIERAL.AGGREGIATL. ........ .... �,.. $ .. „ ........ _. —. GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ „ PRO- I �.. $ POLICY ,Il.lrt LOC _._. ................ .. ,,, ,_ , ,,,,,,,, .... ..... A .I, AUTOMOBILE LIABILITY 4 2015 AS264 144376 1/01/2015 01I011201 CO�MBILd1.rr N&INtaLk LlMlB' L ,� n'4CAIkdFifB $1,000,000 $ X ANY AUTO BODILY INJURY (Per person) ........ $ ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ ...........w., AUTOS .,,, AUTOS ......... ,X X NON -OWNED PIIOREIJ IfY DAMAtsE.......... $ HIREDAUTOS AUTOS (I'!r;r pyeldt«,n(j UMBRELLA LIAR I'll OCCUR EACH OCCURRENCE $ EXCESS LIAR CLAIMS MADE AGGREGATE $ L I RETENTION$ $ WORKERS ,DED ,...... .. _,......, COMPENSATION .,,,, >..... ..,.......,.,.,.,...u... ............. WC STATU- OTH AND EMPLOYERS' LIABILITY YIN TORXaLIIuTS .FR ... _ _ , ......, ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED' N/A (Mandatory In NH) E.L. DISEASE EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below -- ------ -------- _ ...___ .. .._______ ....... -- ......... ,,M , .,.. ,,, .______ .. LI E.L. DISEASE - POLICY ,MIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/ VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) The City of Denton, its Officials, Agents, Employees, and Volunteers is named as additional insured. A waiver of subrogation applies. Coverage is primary and non - contributory. CER"T "IFICATE HOLDER CANCELLATION State of Texas City of Denton 901 B Texas Street Denton, TX 76209 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) 1 of 1 The ACORD name and logo are registered marks of ACORD #S605167/M604754 FPO EXHIBIT 6 INSURANCE REQUIREMENTS AND WORKER'S COMPENSENTATION REQUIREMENTS Respondent's attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their respective insurance carriers or brokers to determine in advance of Proposal /Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low respondent fails to comply strictly with the insurance requirements, that respondent may be disqualified from award of the contract. Upon contract award, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of contract award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to proposal /bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposaUbid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. • Any deductibles or self - insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. EXHIBIT 6 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. EXHIBIT 6 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ X] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than _ ,,,,,,___,_,,,,,,,,,,_,r.. each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. EXHIBIT 6 [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than ,$ ............. ..........................._.r. each occurrence are required, [] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate ")-A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. EXHIBIT 6 B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees EXHIBIT 6 of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. EXHIBIT 6 Exhibit H Contractor Business Information CONFIDI,'INTIAL City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -121, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Houston - Galveston Area Council of Governments (H -GAC) for the acquisition of residential refuse and recycling carts including replacement parts, for the City of Denton Solid Waste Department; and providing an effective date (File 5997- Purchase of Residential Recycling and Refuse Carts awarded to Rehrig Pacific Company in the three (3) year not -to- exceed amount of $875,000). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION The City's Solid Waste Department must purchase additional refuse and recycling carts due to wear and tear, loss, and residential growth in the City of Denton. The new carts will serve customers within newly annexed areas within the City and are also used to upsize and replace older carts currently in service. All carts will be equipped with Radio Frequency Identification (RFID) tags for monitoring service frequency, inventory control, and location purposes. The refuse and recycling carts will be purchased through H -GAC Cooperative Purchasing Contract# RC01 -16. Rehrig Pacific Company also provides an additional pricing discount of approximately 15% off the H -GAC list price because of the large volume of carts purchased by the City of Denton (Exhibit 1). Since 2008, Rehrig Pacific Company has been the provider of the City's residential refuse and recycling carts. Currently over 80% of the refuse and recycling carts in the field are provided by Rehrig. By continuing to use Rehrig as the cart provider, the wheels, axles, and other parts for the carts will be more standardized, thus reducing the number of line items of replacement parts needed to maintain the carts (Exhibit 2). Therefore, staff recommends continuing to use Rehrig carts as the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -121, Version: 1 Approve the purchase of refuse carts and recycling carts through the Houston - Galveston Area Council of Governments from Rehrig Pacific Company in the not -to- exceed amount of $875,000. PRINCIPAL PLACE OF BUSINESS Rehrig Pacific Company Dallas, TX ESTIMATED SCHEDULE OF PROJECT Delivery of the carts is estimated to be within 60 days of the manufacturer's receipt of the order. FISCAL INFORMATION The approved Fiscal Year 2015 -16 Solid Waste Department Capital Improvement Program provides for Certificate of Obligation funding of $275,000 for refuse and recycling carts. The Fiscal Year 2016 -17 Solid Waste Department Capital Improvement Program estimates Certificate of Obligation funding of $300,000 for refuse and recycling carts. The Fiscal Year 2017 -18 Solid Waste Department Capital Improvement Program estimates Certificate of Obligation funding of $300,000 for refuse and recycling carts. Refuse and Recycling Carts: 2016 funding available $275,000 2017 proposed funding $300,000 2018 proposed funding $300,000 Total $875,000 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: H -GAC Pricing Exhibit 2: Staff memo Exhibit 3: Public Utilities Board Minutes Exhibit 4: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 2/25/2016 File M ID 16 -121, Version: 1 For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 3 of 3 Printed on 2/25/2016 h rvvm d by I cx:ls i''I 211/2016 Refuse & Recycling Containers & Lifters - RC01 -16:: HGACBuy EXHIBIT 1 NGACBuy V'UAaU' SMART &vtrP &CH A.LUU'MS '.601UUU"ION ' � if,1 {iYLf GENERAL PURPOSE HWdRASTR CURIF COMMUNICATIONS GROUNDS PUS HC EMERGENCY .. . CCSPE3A rVPQ.. CONSUL.'lING EMERGENCY S "MIE YGEN &( : IkQ1WPIWHENI & EGtUVU'O ENT S. II �ACQII..tl'MIIIE S & WORKS EQUIPMENT & LEASING && �SSAFFQUMG PREPAREDNESS S ENERGY VEHICLES SERVICES SERVICES PARKS EQ UIIIPMEINT EQUIPMENT NT S UIPPILGIE:.S SEIF V[CIES II: MASTER U'kIEC4:D'VERYf' PURCHASING Yam are hare: H.') n,,, a Rouse A Recd n0 r3onvativers do I..ffhms- RC01 IS PUIBUIC WORKS EQUIPMEN r REFUSE & RECYCLING CONTAVNIERS & LAFTIERS . RCOI -fib Contract No° t RCou -r6 H -GAC CONTACTS ll°sfficcHVC Datei danaary 01, 2w6 thru December 31, P017 Veronica Johnson (P): 71" .993 -2,K6 Na e: llw tables below show Lase bid items oniy,. Other conilgurati.ans, a,s wall as many options and (FT 713 -993 -4548 t'errril IGa 01IISQnCIl- aceL'SSories ate ma lable. SQnne pricing requires a rn Pninmin quantity purchase, Please. ea)ntacl your preferred — contractor to discuss your needs and obtain a written IIGA.CBuv Contract Pricing Worksheet. SAC VENDOR CONTACTS �ULS�a I Buscit syste.aaa l, nl&" S;YUd4:,.iv41a411iPi *4.4Ugotp Unnilern abonnal Inc (lU.@ .PLU.6.. " !.'U.lEL7 M1 i v 1k4r:LM:Frt f +k U .idUd;� Ted Boothe (P): Soo -56+5 -9931 w Ii ?t: ([r): 705- 722 -8872 iw Q7'tto F;ny7rQnmerrtAI R C' - bgrc f(It' S3rYta It w tF; 7'I PnSIAI I' sh , w &1).xte Pad QfmitnanM1' Cascade Engineering, w"UUvder nTidllStri E`S °Qtcr Late... Lidark Broderick w 'I YneQr Qip� r:at. d (I'): 2.a3- 695 -i iSc, (F): 51.6- 975 -490.2 A I"n to c Impact Lee Visdonn MFIC A.drite Environmental Inc. Doug Hili Provivas: Big Bcfly „"ur➢pw411" Coinpili tUHp" and Recycling C4DrfI avirier'S (F): 289_987_4567 (1i): Q0o -0oo -0000 Q:l lek here ft/1 ;_„P',PP131t H -GAG H4nm C)E�ripfknY Offered VMirruumuvn� 6AI:y Product Price APL Inc, Code Anthony- C.asali (I'): 1€ 0 -046 -3027 (F); 418- 789-31.53 CA001 Big 1Befly Sdaar hido ar C:orripacUor :. 50.4 "H X 25.1 "WW X 25.9 "E:b" $3,57200 1 li °k tP t r r Al gWvanized sheer meal kateviear avid' exfev0ov" heavy duly UPIUn0c side ' panels, Qvaash film Low- de^nya, Ilxn0ya4h,0evve Irhidic, 125Nbs. max . Otto I[ dnn^nronnannental compaction Uovee. plugs ivPQn r0airidard 11 OV /220v outiecs US"ystents (AZ), LLC Eric Viele (P)1 U: uo- 79Uv..6886a II:UPeCDG12 Solar Sud G:ef : X26 X ;y3, a'T2.QYQP M n Iext 4 -5 9 i $ c. e• v er rall"sa. viveacar 25. "D, viw, h ulyiWF 2a.UU"" @, c7eNmaunixa.d sUrerQ uineUaO Yva4a:r Verr aavud airUenvVeuv, Vie:iwy fluky s k'E.,I.;iidUU➢) plastic side rands, hash Ilairr: Ilow density fidyebylene pVas4ic.. Peninsula Plastics Ltd 1250fibs, nvi�ax oortrgia Ilion force Ashley Clark (P)h 905 -87 u..4766 ICDUA003 113orU F7e'iy 1>OVav ro0ev Ccrvipnackaar wriUh 1 vec}rsdiOA,g uarnV4:, 50 gga0 n IiBUn $5,058,'75 1 (Fr): 905 ..87'i..481 r ( "09 "x19 "x34 '(, 561.1 "`<A(X 25.9"°..) X.50 4 "Ihp i,;:(LZI PUenL..ton" U''M Reltrig Padfic Company IF.UA004 Big Belly Soar Soar Compactor wish 2 recycling urviis; 50 gaHori b rac. $6,550, .25 1 Wes Glakas (U9 "x1p "x°34 "V„ 73.7'W X 25,0 "D X 50..4 "` l ° (IP)'r 84)0-426-1.)589 (F). wi.l ...638..74,77 g,;,llua „;(t Vie m ^� fum i?zntafiI GA58 Big iTeIVy Solar 0micoa:ar C wnpactor : 50.411 -1 X 25.1 "ViW X 25 9"IEU, $3,57Z00 1 Toter, L.L C r aLvainized shee:u niekil IviQa ar and exdevfov, heavy Clkdy plastic ads ,Shelley EIeasley IUu inels, trash dm faw density Ui{AY!ye iyierie pAleeQVt1. 125CUIIkas, Imax 4 b 4.. (P): t 00- "n. x..44 22 rdvvmF. racd' oon force, pOugsVrnkcrsCaincNairdllUvF ;C2Q.iwoutlets (pr)': 704 ,.878_0734 GA060 B: g Belly „SrrOar Soro ar CoruvpacA✓sr' ”, fi7 giya on ItUVtl , 50.4 "U'i X 26 1'W X $3,572,00 1 25.9 "D, 9af ravivaid sheaal rnetal inkeriler avid eufettlQv, heavy doily UaVu5,6r, side parieVs, 4cuth, Eaun: Vow - darvatryU Lvotyelhyfene Oastk;, 12 5011lbs, max vaotnpaadkaa force. GA061 GzGcp Bally Sour Solar C ompadw w0h 1 raay+a:llung urYVt: 50 gauun bin $5,,05875 1 09 "x'f4 ^x34 "..p" 50.1.W X 25,9" D X D A "F; GA062 &g Befly Uaofm Solar ' CovinpaaRor wHh 2 recycling urhis: SO galan tativus $6,550.25 1 (19 "09"04 "'p" 7,U.P'IN X' 25.10 "D X 50,4 "H I;acr, to,4 a Busch SvsLen is I(n ternatl.mal MFR: Busch Sy- sterns International Pr'educts: Curbside.• Recych rig Bins, Indoor C.ontairiers, Ind usdrial/Outdoor Containers, lids, and Residential. Rollout Containers H GAC I@eru Desevirifioin C.lffevad Minumurn ay Product. Fir ka Crider II: B005 Ela x)i .Striherns LmernaflavivA "TRU.0 1E.14'„ 14 gaho n capacity rec.yciing $7.52 No Minimum eaonvaineu 10.7 r °E.. 7115.'75 "W X 13 5`4E1„ vir0 : icin moided- http: / /www.hgacbuy.org/ products /publicworks /refuse - container- rc01- 16.aspx 1/13 211/2016 Refuse & Recycling Containers & Lifters - RC01-16:: HGACBuy EXHIBIT 1 E31-252 Pen Piaft PIP 53L: 116 GaItor, dar*a1hin curbside reopAing I MFL $4,40 180 Product x U,5"W x 15 5"t 1 intention nrolded BL253 Perl Plasl FIFI-83L.: 22 Galen siark3ble curbskie racyrAnst bin: 17,5"L. M40 150 x 14,5"W % 21,2;5 "r I I molded BI-254 Pann Pia%t PP-(.Y,4 Vented Dome Lid injecInn maIded rits Il olh 16 $1,75 10 $54,75 108 Gallon arid 22 Gallon recyck,, I G,4026a Pen IPOas4 F11P F'Ac IPaaperdCaan SII L.Id wrection mrAded firs beffi 16 $200 10 6atorr and 22 Golon v eryck. birm Avatiarste, Mir skker padalg& GA027 Pen Prast PFI-PL: Can Hche L.Id Injection m0ded lics both 16 Gakn $2M RtNig Padfic. Company ROC, 35: 35 gallan rapacity resid. enUal and 22 goibn reryde bins. Avitcelsto with stirmu padra. ge for rabdiing GA028 Pein Fliast FIFI M-: 2 gallon Mcnen foad wasle bin Avalable wilh sohd $Ms 330 mw kind srop sac', O'wheds IV, vented rid or rid wild idnate. brinciton rnaided, waill-rrounIable, GA029 Pan Prast PIFL601...: U Gaitoin Fund Waste bin with Welling 11d, $11,90 84 $55,75 108 animal rock and wheels, Available with sold IId, vented Ild or h Mpith uottout carl, urlver�..at durincing design, Injectain molded, hietaraNy hcAe, Intfi!:t",fion maided, lkl2kht-t-w Rehrig Pacific Compaitty ArI ReInig Pacific Company Products: Curb.,Me Reqycling Bills, Lids, http://www.hgacbuy.org/products/publicworks/refuse-container-rcOl-16.aspx 9/13 and Residential Minor Containers H-GAC Item Description Offered Minumurn Oty Product Price Code AG255 Rehvkd Flainift Company ROC -20: 20 gation capacky veskientild $54,75 108 roltaiO cart untwarser dumeng des.4n, Injection rroldect, Onegrally tackled stop par, 8' wheeirt AG256 RtNig Padfic. Company ROC, 35: 35 gallan rapacity resid. enUal $4675 108 rallmA rclW universall dunnfring desk)n, InIeclkw moki➢d, infegrally mw kind srop sac', O'wheds AG257 Rehfig cladflc Corripany 6tOC-65: 65 gWk)rr ¢mpacily ve,,A%V1f101 $55,75 108 uottout carl, urlver�..at durincing design, Injectain molded, hietaraNy molded stop bar, 10" whes. Is AG258 Reini'19 Pacific Company RCK -65Y: 65 gallon ,,spadly resideiniklt $70.75 108 rogour cart for yard wasler, universal durrising daskgn, injnlrhort rnolded, hlegrMly rnoided stop I 10' wheets AG259 Rehrrq Pacific Company ROC-95 95 gation caparAlf, residentrat $60US 106 icilwit cart; universW duvirriphig deAgn, rr)Aedion nw.Aded, hiagradly mokled slop bar, IT wheels. AG260 II Paci-lic Company ROC-95FA: 95 gallon capacity residential $60,75 108 rollout cart: fully aulovnaled dumping design, injection molded, 10" wheals AG261 Rehriq Pacilir Company ROC-95NG: 95 galion capacily resmential $6075 108 rdiout cart: fully automated dumping dbsigri, miectiorr rnoided, 10" wheals AG262 Rehirig Parke Gorripany ROC-40L 40 Leer Organic Waske $29,4,15 108 Recyding Cart: pill handle and air fighr snap bck rid, Injection rrokled P6263 Re wig Padric Carripany ROC-80L V Lifer Orgaric, Waste W,75 108 Recyding Carl: Wealtherproof Rodent ResIstant 11 ocwrq ILM, LiIghrwaighl, 8" Snap MiepV, Injection molded AG265 Rehirkj Fladtk; Company 80 Liner ResUential RrA OiA $46,75 108 Cant Universar DuirnpIng Design, 0" Snap On WhapKt, injection molded AG266 Rehvig Padk Company ROG 35DID: 35 GWkm Capacity $71,75 108 DwAnnent Deetruclion Cavir wine Stolted 1-ki Loc*ing Hasp or 11 rvrearnar Lock wOr Key AG267 Relwig Pacific Company 1pOC 65L' D: 65 Gaibn Capacky $80J5 108 Document Dercruclion Carl wAh Slotted Lei: Lodking I ar pvnernar Lock wilh Key AG288 Rehirq J'adfic Company ROC-95M 95 (.-Wbri Capadly $05'75 108 Document Destruction Carr with Slothrid Lkk Lockbc. Hess or Intrawnal Lockwiffn Key BG269 ROwig ParAly, Company RB 14: curbside nerydIng en: 14 gabon $725 200 capacity, injection makied BG270 Rehviq Pack,, Cornpany RIB 18: aireride rerycling bin: 18 gaiter $7 95 200 capacily injecOon rvolded http://www.hgacbuy.org/products/publicworks/refuse-container-rcOl-16.aspx 9/13 2/1/2016 Lifters - RC01 -16 :: HGACBuy Refuse & Recycling Containers & Lifters Trackdrig Sy uierm) -CAR P.S . ltehida & P3'orvlim, Trad dng Y4OW6 per morph XHT SG271 Repro pa g u pul . 7. ,k 1 1 design, Onf2 dion rrmkled, Ovvde i[ ally vincidead slop bar, 10 wheels vsrniednvimucydng bin; 25 galon capaeDfy, In1Ud Om nddea, GAO 12 IRehrlg Pacific Company 17Reslidelntiall nnaiivvvlsur, Fey" can und'ude 4,00 per 2000 webs[te developnmena:enAries and p'ua�rA a;ards delivered arid RovinualV'a II tornaied dumping design revoAvcw.d through peso0 service (ew.duding p osdarge) pidiinng and BG272 Rehrtlag U acft Company O'u'IFi32� . hnadtuv tria0 /pubiic Oittedrefuse $1885 200 cano.iiverfreeyding bun: 332 ga09on ro pa&y, inpeilio o maNded, rmuarutuuaPPatirorvnWed dumping design BG273 RuN drg W I'ON, Cu igoatl`ry 9 dFl ,D' relnd nlp iucyclind bir0' ^I S..Ofa $'dCLP 0 230 ld 0bi r,"'piirwAy, i PO 1 t "Irnd I j q�'i µf1 of.{I(w, rnolood CGy274 pR.ehrig Padlua Company AtRll:v 6G °, apiarhlrnwrm r'ea:'yd"ong Ibuou:, 6 gaaVl in $750 200 u-:apsd iy, injection nno0 ed with hiainde 6:;G2'k'a RLhfitt 6raci4u: Company ORB-4G: v fife racpding b6: 4.0 gaa0lon $6,50 2O0 capacity, dnjedialn indIded„ desk side Ibin CG276 Rehrlg 0rar„kic Company If VVC -2(3: ddl'Ihchen hired waste vronfelrirsr $5 75 200 2.0 gra0lon ripac Ay, Injea'.3fsin molded DGa2'77 dRehrig IPald5c, Cornpar+y Conu rwrciM Container 2Y 2 yard Frnmll $62500 'r Load ddurnprder: r t0onall rmellded, rephicaNe nodded to pllas6c sheeves, indudes Lids and Casters II.DG278 Rehlvig fla;6Milc Company Cornmerdral Coviltalnelr' -,3°7: 3 yalid Flrort $72&00 l (Load durripaster: rotaWnal virokied, vep0 icable umra0ded in plla£sYic Meeves, V mdeudes (Lids avid Costars DG279 l'dehrigg FvoOk Company G. omen- eirdall Cor)Wner 4Y:4 yalyd Fromfl S81O.00 t Load durmp4ster,: raharional instead, repiricaNe niakied Irl sladtio skeveh, IindvAdes Ldsandt Casters L'DG260 Rehv'dgg Paacifir Corcmpa my Covnuvoer loll Cond iniev -uaYo Fa par Froirb $1,005.00 1 (Load dour ipustler: rahaliona0 niT.Aded, repllrrauabie ImTedall or p iastir peeves, includes (Lids and Skid f -aiest DG281 PR.ehrig Padfic Company Cornrmerc•.hal C nntaher..BY: 5 yard F: rout $1,225.O0 11........ 0..oad douumpaspen: voiaal rriiA moded, r'ep hea ble pins luc or onrrsla0 szaovev, indudes Lips add Skid IPlval.cas II:DG>2482 Reding Padii. Company C°ommnoicW C onuairioir 3`dR'.: 3 yard Rear $685.00 1 Lead drimpsteP: rol'a,Id,1r M madded, hlunni0n bar a0ad 1 -5 ton rear rinmx ped caN a hook, iindi des I..ids and Casters M.D0283 FRehrig P: amilruc. Ccrripuany IF LC -SOG,: riur 0ia Whe.r cx)Maoner: 60 ga08un $400,.00 16 G:BpIadty, roiarivmwn inc4ded, manmat /aura mWa0ed adier bin II.DG284 75 ¢gYakm S50G.6.B0 5 capacity, rolaVorrA molded, rmarnmalllaup mneled wHecffdrin GA0011 Rehrug F'adfic C nrrurranly IIROC 11O6b1..: 100 (Liter Organic Wa: le: $03.95 103 0"i,ecycling Ceti: Wpalherproor Rodent Re ostant Leaking (Lid, Ligionmoighl, H" srt' ain vWh oohs, ira)er.Mon molded, nonpenelrrralhngg cWch bar GAOO2 Rehrly P "actfic, Company C ommrerdall 4a�r ime 2YR: 2 Yard IRoar $605.00 1 (Load d0,9rnpsde0`: rf.1da^'fiov a"a,V mmlllded, 4unrilicin bar and 1,5 lan rear move n(ed cel:rte Look, indudes 1Lids and Casters Oi,F003 IRahvlgPaa:& Compare, A;° :rribk, avid N:'D'irArihuall'9run of coal "isto $7J5 3000 0 -Hein: ou".)Ahties 3,000 5,000 GA004 Rehri g Pacddic Company RIHO W V: pReiraiht Costs off eximUng:g $8()0 3000 Contahisrs Minh win 3,000 rsarb (does not indude "M ag Cost) times GADOS IRehrlg IP'aualio Company IIRHID LF RehoM Codas of exr:;ting ;6'D C. 00 30M.) Containers Mini mums 3,.000 wris (dcaas not. indude Tag Coo) GA006 Rehiiig Ras.& Comp alnly Purchase ap G {I= O Readerfi iar'dware $13,000.00 11 aridlor GPS s9as'Wims 4ov Conmrnerc rM, Senui Audcrmated send ll'I,dly Automated Calection Wahldes GA007 FRehilg FrlacAr Company Lease of RIFIID FRearderA0 ardvvaare candler 7O0 per trourk GPS sye:','Verns for CorviniereU, Sernl A utornared and I"ufly per m anth Ad.Iltornaped Qsabdk-ctkrn d /el'1icie£i (PdF' C to Maintain Co mer';ahip of Idapuipmenr and ra dives (3) year agreerneril is vevluired, Ovvlly offem :d for q uafiffed aus'tovnei sfp➢rc➢ ecfs' ) GBu008 Rehrig i :ue :lfic 6ornp a ny C A,R'.T 93.. (Corriaairsn Asmf dRe.cmkve:ry $1000 p1er' I rvickdrog .5yslem)- Irnvaenttory S Work Order M adulle morrith GA009 Rehr ig W'adfic 6aorrrpany CAR .'r S. (Cen%a'iner Asset Recovery $300 per lruc*, "p radkingg Sy.slerno -C.A, R.T,S Caylllecikw Data "rveaong l o&de per rnanlCh G9A01O lRehriyg P'�ad4s, Cornpbiiny C.A.I { p.2. (Conlainer Asset Recovery $300 per hick, Trackdrig Sy uierm) -CAR P.S . ltehida & P3'orvlim, Trad dng Y4OW6 per morph (On Google Maps Flatfi rnip d.3A0I1 Rehr'ig P acibc Cornnpva£ny Rehr'vg Pacific ROC 95Y: 95 galhvn $7575 108 capacity reskionfU roibu..l cart for yard wreasie, unpver'sM rdum piing design, Onf2 dion rrmkled, Ovvde i[ ally vincidead slop bar, 10 wheels GAO 12 IRehrlg Pacific Company 17Reslidelntiall nnaiivvvlsur, Fey" can und'ude 4,00 per 2000 webs[te developnmena:enAries and p'ua�rA a;ards delivered arid piaarticaparol revoAvcw.d through peso0 service (ew.duding p osdarge) pidiinng and rxrrmpaHinCg of respon%, m minirndum of 2,000 http:// www. hgacbuy .org/products /publicworks /refuse - container- rc01- 16.aspx 10/13 EXHIBIT 2 D rdon Solid Waste Departm rst 1527 S. Mayhill Rd. Denton, TX 76208 Phone (940) 349 -8046 Fax (940) 349 -8057 Web Site: www.cityofdenton.com SOLID WASTE & RECYCLING DEPARTMENT MEMORANDUM DATE: Februaryl8, 2016 TO: Elton Brock FROM: S. Lebsack SUBJECT: Standardization of Equipment Solid Waste & Recycling has used Rehrig Manufacturing refuse and recycling carts for many years. They're used because they're durable, they have excellent stability, they provide excellent customer service and warranty support, they are manufactured in the sizes and colors the Department uses throughout the City, and the Department's current line of collection vehicles is adjusted to handle their cart circumferences. We would like to continue to utilize the Rehrig carts to develop equipment standardization throughout the City. Regards, S. Lebsack Development and Administrative Manager Solid Waste & Recycling Services 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD February 22, 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, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, Barbara Russell, and Brendan Carroll Absent: Susan Parker and Lilia Bynum Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA A. PUB16 -025 - Consider recommending approval to award a purchase agreement in the amount not to exceed $875,000, for a term of thirty -six (36) months, for the purchase of residential refuse and recycling carts and replacement parts, to Rehrig Pacific Company through the State of Texas's HGAC Cooperative Purchasing Program. (File 5997) Pulled for questions by Board Member Russell. Russell asked if this is in the budget, Kemler answered it is in the budget. Russell then stated it seems high, have other sources been investigated. Kemler answered the carts average $50 a piece which is about half of retail. They have researched other avenues and this is the best. There was a motion by Board Member Russell to approve this item and a second by Board Member Jackson. Vote 5 -0 approved Adjournment 10:53 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE HOUSTON - GALVESTON AREA COUNCIL OF GOVERNMENTS (H -GAC) FOR THE ACQUISITION OF RESIDENTIAL REFUSE AND RECYCLING CARTS INCLUDING REPLACEMENT PARTS, FOR THE CITY OF DENTON SOLID WASTE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5997- PURCHASE OF RESIDENTIAL RECYCLING AND REFUSE CARTS AWARDED TO REHRIG PACIFIC COMPANY IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $875,000). WHEREAS, pursuant to Ordinance 95 -107, the Houston - Galveston Area Council of Government (H -GAC) has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Houston - Galveston Area Council of Government (H -GAC) programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered file for materials, equipment, supplies, or services, are hereby approved. FILE NUMBER VENDOR AMOUNT 5997 Rehrig Pacific Company $875,000 SECTION 2. That by the acceptance and approval of the above numbered items set forth in the referenced file, the City accepts the offer of the persons submitting the bids to the H- GAC for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the H -GAC, and the purchase orders issued by the City. EXHIBIT 4 SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by H -GAC, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to H -GAC, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5997 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated items, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ffig APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �01 µ BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -265, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services ACM: Jon Fortune Date: March 1, 2016 SUBJECT Consider adoption of an ordinance (1) releasing, abandoning and vacating (a) a 28.953 acre public drainage easement recorded as Instrument No. 2002- R0073655, Real Property Records, Denton County, Texas; (b) a 13.14 acre public drainage & detention easement recorded as Instrument No. 2002- R0073656, Real Property Records, Denton County, Texas; and (c) a 0.562 acre public drainage easement recorded as Instrument No. 2002- R0073661, Real Property Records, Denton County, Texas, all located in the S. Graham Survey, Abstract No. 468, Denton County, Texas; and (2) partially releasing, abandoning and vacating a 5.324 acre public drainage easement recorded as Instrument No. 2005- 85936, Real Property Records, Denton County, Texas, and located in the M. Smith Survey, Abstract No. 1181 and the W. Smith Survey, Abstract No. 1182, Denton County, Texas; and declaring an effective date. [Abandonment of drainage easements to allow for subdivision lot sales] BACKGROUND The property owner, Bloomfield Homes, L.P., a Texas limited partnership, requests the City abandon and vacate a 28.953 acre public drainage easement, 13.140 acre public drainage and detention easement, 0.562 acre public drainage easement and the partial abandonment of a 5.324 acre public drainage easement to remove these drainage easement encumbrances on its current phase of residential development in the Country Lakes North Addition. The subject drainage easements were conveyed to the City in 2002, to address the drainage requirements of Country Lakes North Addition. Since then, with the progression of the development of the overall property, public drainage improvements have been constructed and drainage easements have been dedicated by the Country Lakes North Addition platting activities, thus absolving the need for the subject drainage easements. In 2005, a 21.504 acre public drainage easement was dedicated to the City and drainage improvements constructed to eliminate the need for the 28.953 acre public drainage easement, 13.140 acre public drainage and detention easement and 0.562 public drainage easement. Additional drainage improvements have been also made and accepted by way of the phasing of the Country Lakes North development, to allow for the partial abandonment of the 5.324 acre public drainage. 1.787 acres of the original 5.324 acre public drainage easement will remain and is slated for future abandonment with future phasing and necessary public improvements, as the subdivision build -out progresses. The subject drainage easements have created an encumbrance on certain lots within the latest phase of Country Lakes North Addition. The subject abandonment request was reviewed by The Development Review Committee, and staff recommends the approval. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -265, Version: 1 Staff performs an analysis on the request for abandonments as follows: ■ Is the easement tract requested for abandonment considered "excess easement "? ■ Does the easement tract requested for abandonment have a continued public use? ■ Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? ■ Would the granting of this request establish a precedent for future abandonment requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tracts fit the criteria of "excess easement." Excess easement is defined as: Property rights acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). 2. The easement abandonment tracts are not slated for utilization for any future public drainage. 3. The easement abandonments are in the public interest, because the areas for the subject abandonments are no longer needed by the public and /or have not been utilized for the public. 4. These abandonments will not set precedent, because the above three standards have been met. OPTIONS 1. Recommend approval of the Ordinance. 2. Do not recommend approval. RECOMMENDATION Staff recommends approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Spring of 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Developmental Review Committee recommended approval on January 15, 2015. EXHIBITS 1 Location Map 2 Site Map 3 Ordinance Respectfully submitted: John T. Davis, PE Director of Engineering Services Prepared by: Mark A. Laird Right -of -Way Agent Real Estate and Capital Support City of Denton Page 2 of 2 Printed on 2/26/2016 LOCATION MAP OAK . ...... i. < z H I G 0 F, 0 Downtown Denton 0 d DL/ CORE RBIN 0 ROSELAI, N , 0 ", r < r Fll,i�2449 HOBSON III ]-,,ENCY J. E`EO z R z 0 0 S I f, u A RED OW K u S F- CREE JNTSO HNSON Abandonment Location 0 .. ......... Qu,q, 'R A AWFOR 7- of WFOR z EXHIBIT "Y attachment to CC AIS ORDINANCE NO. AN ORDINANCE (1) RELEASING, ABANDONING AND VACATING (A) A 28.953 ACRE PUBLIC DRAINAGE EASEMENT RECORDED AS INSTRUMENT NO. 2002- R0073655, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; (B) A 13.14 ACRE PUBLIC DRAINAGE & DETENTION EASEMENT RECORDED AS INSTRUMENT NO. 2002 - R0073656, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; AND (C) A 0.562 ACRE PUBLIC DRAINAGE EASEMENT RECORDED AS INSTRUMENT NO. 2002 - R0073661, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, ALL LOCATED IN THE S. GRAHAM SURVEY, ABSTRACT NO. 468, DENTON COUNTY, TEXAS; AND (2) PARTIALLY RELEASING, ABANDONING AND VACATING A 5.324 ACRE PUBLIC DRAINAGE EASEMENT RECORDED AS INSTRUMENT NO. 2005 - 85936, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, AND LOCATED IN THE M. SMITH SURVEY, ABSTRACT NO. 1181 AND THE W. SMITH SURVEY, ABSTRACT NO. 1182, DENTON COUNTY, TEXAS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton is the holder of the following easements: • A 28.953 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073655, Real Property Records, Denton County, Texas; • A 13.14 acre Drainage & Detention Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073656, Real Property Records, Denton County, Texas; • A 0.562 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073661, Real Property Records, Denton County, Texas; hereinafter referred to as the "Total Abandonment Easements or Tracts "; and WHEREAS, the City of Denton is the holder of the following easement: • A 5.324 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2005- 85936, Real Property Records, Denton County, Texas; hereinafter referred to as the "Partial Abandonment Easement "; and EXHIBIT "Y attachment to CC AIS WHEREAS, Bloomfield Homes, L.P., a Texas limited partnership company ( "Owner ") has represented to the City it is the present owner of the property tracts encumbered by the above - captioned easements; and WHEREAS, the Owner has requested the City release, abandonment and vacate the Total Abandonment Easements and partially release, abandon and vacate the Partial Abandonment Easement; and WHEREAS, upon a more specific engineering review of the phased downstream drainage requirements the previous owner the subdivision development did grant the City of Denton the following easement: A 21.504 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on July 15, 2005 and recorded as Instrument No. 2005- 85938, Real Property Records, Denton County, Texas; hereinafter referred to as the "Alternative Easement "; and WHEREAS, the City reviewed the requests of the Owner, and has determined the Total Abandonment Easements are no longer needed and recommends that they be released, abandoned and vacated; and WHEREAS, the City reviewed the requests of the Owner, and has determined that a portion of the Partial Abandonment Easement tract is no longer needed and recommends that a portion be released, abandoned and vacated, that portion being a 3.537 acre tract specifically described in Exhibit "A" and depicted in Exhibit "B ", both attached hereto and made a part hereof for all purposes (the "Partial Abandonment Tract ") ; and WHEREAS, the City Council of the City of Denton, Texas, finds it is in the public interest to release, abandon, and vacate the Total Abandonment Easements, and to release, abandon, and vacate that portion of the Partial Abandonment Easement described as the Partial Abandonment Tract; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON ORDAINS: SECTION 1. The recitations and finding set forth above are incorporated by reference. SECTION 2. The following public drainage easements and drainage and detention easement held by the City of Denton, Texas, are released, abandoned, and vacated: A. That 28.953 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073655, Real Property Records, Denton County, Texas; and Page 2 EXHIBIT "Y attachment to CC AIS B. That 13.14 acre Drainage & Detention Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073656, Real Property Records, Denton County, Texas; and C. That 0.562 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2002- R0073661, Real Property Records, Denton County, Texas. SECTION 3. The following public drainage easement held by the City of Denton, Texas, is partially released, abandoned, and vacated: A. A portion of that 5.324 acre Public Drainage Easement granted to the City of Denton, by Wynne /Jackson Lakes Development LP., a Texas limited partnership on June 12, 2002 and recorded as Instrument No. 2005- 85936, Real Property Records, Denton County, Texas, that a portion hereby released, abandoned and vacated being a 3.537 acre tract specifically described in Exhibit "A" and depicted in Exhibit "B ", both attached hereto and made a part hereof for all purposes (the "Partial Abandonment Tract ") SECTION 4. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton retains and reserves any and all easements, rights of way and any other rights or interests, other than the Total Abandonment Easements and the Partial Abandonment Easement (specifically the Partial Abandonment Tract) which were released, abandoned, vacated in Sections 2 and 3 above, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Total Abandonment Easements and the Partial Abandonment Easement may cover, encumber, include, cross or overlap. Furthermore, the Alternative Easement is specifically retained and reserved, and not released, abandoned, or vacated, and this ordinance has no effect to the continued enjoyment by the City of Denton of the land rights conveyed therein. SECTION 5. The provisions of this ordinance are severable, and the invalidity of any phrase, clause or part of this ordinance shall not affect the validity or effectiveness of the remainder of the ordinance. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. Page 3 EXHIBIT "Y attachment to CC AIS PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY 170-19 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 4 CHRIS WATTS, MAYOR EXHIBIT "Y attachment to CC AIS EXHIBIT A 3.537 ACRES DRAINAGE EASEMENT ABANDONMENT BEING A 3.537 ACRE TRACT OF LAND SITUATED IN THE MARY SMITH SURVEY, ABSTRACT NO. 1181 AND WILLIAM SMITH SURVEY, ABSTRACT NO. 1182, CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING PART OF A TRACT OF LAND, CONVEYED TO BLOOMFIELD HOMES, L.P., AS RECORDED IN COUNTY CLERK'S FILE NO. 2013 - 10870, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS AND BEING PART OF A DRAINAGE EASEMENT DESCRIBED IN COUNTY CLERK'S FILE NO. 2005 - 54871, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS. SAID 3.537 ACRE TRACT, WITH BEARING BASIS BEING THE WEST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING AT A 1/2 INCH IRON ROD FOUND FOR THE NORTHWEST CORNER OF SAID BLOOMFIELD HOMES, L.P. TRACT, SAID POINT BEING AT THE INTERSECTION OF OLD JOHN PAINE ROAD (A VARIABLE WIDTH PRESCRIPTIVE RIGHT -OF -WAY) AND JOHNSON ROAD (A VARIABLE WIDTH PRESCRIPTIVE RIGHT -OF -WAY), SAID POINT ALSO BEING AN ANGLE POINT IN THE SOUTH LINE OF A TRACT OF LAND CONVEYED TO PETRUS INVESTMENT, LP., AS RECORDED IN COUNTY CLERK'S FILE NO. 98- 0117450, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; THENCE, SOUTH 00 DEGREES 06 MINUTES 45 SECONDS EAST, ALONG THE WEST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND AN EASTERLY LINE OF SAID PETRUS INVESTMENT, L.P. TRACT, ALSO WITH SAID OLD JOHN PAINE ROAD, A DISTANCE OF 2583.75 FEET TO A POINT; THENCE, NORTH 89 DEGREES 53 MINUTES 15 SECONDS EAST, OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, A DISTANCE OF 37.07 FEET TO THE POINT OF BEGINNING; THENCE, OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT AND ALONG THE WEST AND NORTH LINES OF SAID DRAINAGE EASEMENT, THE FOLLOWING COURSES AND DISTANCES: NORTH 00 DEGREES 06 MINUTES 45 SECONDS WEST, A DISTANCE OF 80.00 FEET TO A POINT FOR CORNER; NORTH 89 DEGREES 53 MINUTES 15 SECONDS EAST, A DISTANCE OF 221.33 FEET TO A POINT FOR CORNER; NORTH 00 DEGREES 06 MINUTES 45 SECONDS WEST, A DISTANCE OF 583.75 FEET TO A POINT FOR CORNER; IASLD \C3X464\C3X46403 \600 DISCIPLINE\613 Survey \613.7 Legal Descriptions \C3X46403EX05.docx Page 1 of 6 EXHIBIT "Y attachment to CC AIS NORTH 89 DEGREES 53 MINUTES 15 SECONDS EAST, A DISTANCE OF 270.00 FEET TO A POINT FOR CORNER; SOUTH 00 DEGREES 06 MINUTES 45 SECONDS EAST, A DISTANCE OF 50.00 FEET TO A POINT FOR CORNER; NORTH 85 DEGREES 28 MINUTES 27 SECONDS EAST, A DISTANCE OF 220.00 FEET TO A POINT FOR CORNER; NORTH 47 DEGREES 47 MINUTES 33 SECONDS EAST, A DISTANCE OF 220.00 FEET TO A POINT FOR CORNER; NORTH 29 DEGREES 53 MINUTES 34 SECONDS EAST, A DISTANCE OF 340.00 FEET TO A POINT FOR CORNER; NORTH 36 DEGREES 53 MINUTES 59 SECONDS EAST, A DISTANCE OF 140.00 FEET TO A POINT FOR CORNER; SOUTH 52 DEGREES 46 MINUTES 16 SECONDS EAST, A DISTANCE OF 83.44 FEET TO A POINT FOR CORNER ON THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF A 14.420 ACRE TRACT OF LAND CONVEYED TO DENTON INDEPENDENT SCHOOL DISTRICT, AS RECORDED IN COUNTY CLERK'S FILE NO. 2008 - 43036, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS AND THE BEGINNING OF A NON - TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 325.00 FEET, A CENTRAL ANGLE OF 08 DEGREES 58 MINUTES 31 SECONDS, A CHORD WHICH BEARS, NORTH 48 DEGREES 11 MINUTES 03 SECONDS EAST, A DISTANCE OF 50.91 FEET; THENCE, ALONG THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID 14.420 ACRE TRACT, THE FOLLOWING COURSES AND DISTANCES: ALONG SAID NON - TANGENT CURVE TO THE RIGHT, AN ARC DISTANCE OF 79.12 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "JACOBS" SET FOR THE WEST CORNER OF SAID 14.420 ACRE TRACT; SOUTH 46 DEGREES 57 MINUTES 13 SECONDS EAST, A DISTANCE OF 69.30 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER BURGESS" FOUND FOR A NORTH CORNER OF COUNTRY LAKES NORTH, PHASE TWO, AN ADDITION TO THE CITY OF DENTON, AS RECORDED IN CABINET W, PAGE 917, PLAT RECORDS, DENTON COUNTY, TEXAS; IASLD \C3X464 \C3X46403 \600 DISCIPLINE\613 Survey \613.7 Legal Descriptions \C3X46403EX05.docx Page 2 of 6 EXHIBIT "Y attachment to CC AIS THENCE, ALONG THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID COUNTRY LAKES NORTH, PHASE TWO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 36 DEGREES 53 MINUTES 59 SECONDS WEST, A DISTANCE OF 117.43 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER BURGESS" FOUND FOR CORNER; NORTH 53 DEGREES 06 MINUTES 01 SECONDS WEST, A DISTANCE OF 20.06 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER BURGESS" FOUND FOR CORNER AND THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 300.00 FEET, A CENTRAL ANGLE OF 15 DEGREES 06 MINUTES 36 SECONDS, A CHORD WHICH BEARS, NORTH 45 DEGREES 32 MINUTES 43 SECONDS WEST, A DISTANCE OF 78.89 FEET; ALONG SAID TANGENT CURVE TO THE RIGHT, CONTINUING OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, AN ARC DISTANCE OF 79.12 FEET TO A POINT FOR CORNER; THENCE, OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, THE FOLLOWING COURSES AND DISTANCES: SOUTH 52 DEGREES 00 MINUTES 35 SECONDS WEST, A DISTANCE OF 50.00 FEET TO A POINT FOR CORNER AND THE BEGINNING OF A NON - TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 350.00 FEET, A CENTRAL ANGLE OF 13 DEGREES 58 MINUTES 37 SECONDS, A CHORD WHICH BEARS, SOUTH 44 DEGREES 58 MINUTES 43 SECONDS EAST, A DISTANCE OF 85.17 FEET; ALONG SAID NON - TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 85.38 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "JACOBS" SET FOR CORNER ON THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID COUNTRY LAKES NORTH, PHASE TWO; THENCE, ALONG THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID COUNTRY LAKES NORTH, PHASE TWO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 42 DEGREES 37 MINUTES 37 SECONDS WEST, A DISTANCE OF 13 5.3 9 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "JACOBS" SET FOR CORNER; SOUTH 36 DEGREES 53 MINUTES 59 SECONDS WEST, A DISTANCE OF IASLD \C3X464 \C3X46403 \600 DISCIPLINa613 Survey \613.7 Legal Descriptions \C3X46403EX05.docx Page 3 of 6 EXHIBIT "Y attachment to CC AIS 115.36 FEET TO A POINT FOR CORNER; SOUTH 36 DEGREES 39 MINUTES 43 SECONDS WEST, A DISTANCE OF 87.97 FEET TO AN IRON ROD FOUND FOR CORNER; SOUTH 48 DEGREES 31 MINUTES 12 SECONDS WEST, A DISTANCE OF 82.89 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "CARTER BURGESS" FOUND FOR CORNER; SOUTH 59 DEGREES 15 MINUTES 22 SECONDS WEST, A DISTANCE OF 82.89 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED "JACOBS" SET FOR CORNER; SOUTH 69 DEGREES 59 MINUTES 33 SECONDS WEST, A DISTANCE OF 82.89 FEET TO A POINT FOR CORNER; SOUTH 80 DEGREES 03 MINUTES 41 SECONDS WEST, A DISTANCE OF 82.99 FEET TO AN IRON ROD FOUND FOR CORNER; SOUTH 89 DEGREES 53 MINUTES 15 SECONDS WEST, A DISTANCE OF 144.59 FEET TO A POINT FOR CORNER; NORTH 00 DEGREES 06 MINUTES 45 SECONDS WEST, CONTINUING OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, A DISTANCE OF 50.00 FEET TO A POINT FOR CORNER; THENCE, OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, THE FOLLOWING COURSES AND DISTANCES: SOUTH 89 DEGREES 53 MINUTES 15 SECONDS WEST, A DISTANCE OF 50.00 FEET TO A POINT FOR CORNER; SOUTH 00 DEGREES 06 MINUTES 45 SECONDS EAST, A DISTANCE OF 80.00 FEET TO AN "X" CUT FOUND FOR CORNER ON THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID COUNTRY LAKES NORTH, PHASE TWO; THENCE, ALONG THE EAST LINE OF SAID BLOOMFIELD HOMES, L.P. TRACT AND THE WEST LINE OF SAID COUNTRY LAKES NORTH, PHASE TWO, THE FOLLOWING COURSES AND DISTANCES: SOUTH 89 DEGREES 53 MINUTES 15 SECONDS WEST, A DISTANCE OF 116.70 FEET TO A POINT FOR CORNER; SOUTH 00 DEGREES 06 MINUTES 45 SECONDS EAST, A DISTANCE OF 438.04 FEET TO A 5/8 INCH IRON ROD WITH PLASTIC CAP STAMPED IASLD \C3X464 \C3X46403 \600 DISCIPLINEM13 Survey\ 613.7 Legal Descriptions \C3X46403EX05.docx Page 4 of 6 EXHIBIT "Y attachment to CC AIS "CARTER BURGESS" FOUND FOR CORNER AND THE BEGINNING OF A NON - TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 275.00 FEET, A CENTRAL ANGLE OF 06 DEGREES 00 MINUTES 27 SECONDS, A CHORD WHICH BEARS, SOUTH 61 DEGREES 46 MINUTES 24 SECONDS WEST, A DISTANCE OF 28.82 FEET; THENCE, OVER AND ACROSS SAID BLOOMFIELD HOMES, L.P. TRACT, THE FOLLOWING COURSES AND DISTANCES: ALONG SAID NON - TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 28.83 FEET TO A POINT FOR CORNER AND THE BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS OF 225.00 FEET, A CENTRAL ANGLE OF 03 DEGREES 59 MINUTES 40 SECONDS, A CHORD WHICH BEARS, SOUTH 60 DEGREES 46 MINUTES 01 SECONDS WEST, A DISTANCE OF 15.68 FEET; ALONG SAID REVERSE CURVE TO THE RIGHT, AN ARC DISTANCE OF 15.69 FEET TO A POINT FOR CORNER; SOUTH 27 DEGREES 14 MINUTES 09 SECONDS EAST, A DISTANCE OF 50.00 FEET TO A POINT FOR CORNER; SOUTH 89 DEGREES 53 MINUTES 15 SECONDS WEST, A DISTANCE OF 250.00 FEET TO THE POINT OF BEGINNING, AND CONTAINING 3.537 ACRES OF LAND, MORE OR LESS. A PARCEL PLAT OF EQUAL DATE HEREWFFH ACCOMPANIES THIS PROPERTY Michael J. Baitup, R.P.L.S. Registered Professional Land Surveyor Texas Registration No. 4574 Jacobs Engineering Group, Inc. 1999 Bryan Street, Suite 1200 Dallas, Texas 75201 214 - 638 -0145 OCTOBER 9, 2013 %S E T� MICHAEL J. BAITUP ..Y .....................s .. p2- '�� •SURF' L \SLD \C3X464 \C3X46403 \600 DISCIPLINB613 Surve�N613.7 Legal Descriptions \C3X46403EX05.docx Page 5 of 6 EXHIBIT "3" attachment to CC AIS CURVE CENTRAL ANGLE RADIUS CHORD BEARING CHORD LENGTH ARC LENGTH Cl 8'56 31" 325.00' S48'11'03 W 50.86' 50.91 C2 15'06'36" 300.00' N45.32'43 W 78.89' 79.12' C3 13'58'37" 350.00' S44'58'43 "E 85.17' 85.38' C4 6'00'27 275.00' S61'46 24 "W 28.82' 28.83' CS 3'59'40" 1 225.00' 1 S60'46'01 "W 15.68 15.69' POINT OF JOHN COMMENCING 111 /2-IRF CID 00o W 0 0 ti a A a Aai A Q Q 0 o W I,.:� z W ^ I•- a �_U >00Q� S zeia 0 V1� � U � U W 0 CL w4m W z J 0 N) O� Z 04 Z 0 U W .� c po 0 PETRUS INVESTMENT, LP. C.C.# 98- 0117450 R.P.R.D.C.T r� 270 BLOOMFIELD HOMES, L.P. C.C.# 2013- 108870 R.P.R.D.C.T. DRAINAGE EASEMENT C.C.# 2005 -85936 R.P.R.D.C.T APPROXIMATE SURVEY LINE 14.420 ACRES DENTON I.S.D. --- C.C.# 2008 -43036 R.P.R.D.C.T i CIRS 6N \ f 11 -(& CIRF IRFys,�, 10 n- w L4 .pf CIRF �� s -' ° 3.537 L21 CIRS Vi DD ACRES N 0 IRF x,16 8 0 -y � 9 �1 7 CRF L LAS e = M 0 M L23 X. LIT 2 3' 4 5 BLOC U FND d N . � p- COUNTRY LAKES NORTH �0 26 _W 3 12 PHASE TWO S PAP w 0) CAB. W, PG. 917 27 U �t 13 P.R.D.C.T. ,�.;� 28 O U > w ( �'$��'11�� M W U J I 33 32 14 POINT OF Or --- -- - BEGINNING O15 LrY �� b Q Y' 3 4 5 N16 1 2 Cl C,4 LOT 2R, BLOCK W `C5 COUNPHASEK�ON�RTH C.C.# 2012 -10� 4 5 L24 ( P.R.D.C.T. Of tf1 tO QQ\- C, .9n 0 .................. o ? �\ MICHAEL J. BAITUP Off^ COUNTPYA SE NORTH ..y ..................... %... A 4574 CAB. U. PG. 625 p fir: LEG= CIRS Q P.R.D.C.T. ��•• oP �0 Q IRF IRON ROD FOUND gNO..... 5., O CIRS 5/8" IRON ROD WITH YELLOW S U R`I y PLASTIC CAP STAMPED 'JACOBS* SET CIRF 5/8' IRON ROD WITH YELLOW PLASTIC CAP STAMPED 'CARTER BURGESS` FOUND P.R.D.C.T. PLAT RECORDS, DENTON COUNTY. TEXAS R.P.R.D.C.T. REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS BEARING BASIS IS THE WEST LINE OF A TRACT OF LAND CONVEYED TO 8 OOMFIELD F RECORDED IN COUNTY CLERK'S FILE NO. 2013- 10870. REAL PROPERTY RECORDS, DE �-- -z� 1 22 2 0 U SCALE: 1' = 200' LINE La. cr- DISTANCE L1 N00'06 45 "W 80.00' vt CIRS Aj L10 ry try CIRS % 14 w'D L4 13 w N U 12 �\ Woo 1 1 W p 0� C7 -a: \ IRFys,�, 10 n- w L4 .pf CIRF �� s -' ° 3.537 L21 CIRS Vi DD ACRES N 0 IRF x,16 8 0 -y � 9 �1 7 CRF L LAS e = M 0 M L23 X. LIT 2 3' 4 5 BLOC U FND d N . � p- COUNTRY LAKES NORTH �0 26 _W 3 12 PHASE TWO S PAP w 0) CAB. W, PG. 917 27 U �t 13 P.R.D.C.T. ,�.;� 28 O U > w ( �'$��'11�� M W U J I 33 32 14 POINT OF Or --- -- - BEGINNING O15 LrY �� b Q Y' 3 4 5 N16 1 2 Cl C,4 LOT 2R, BLOCK W `C5 COUNPHASEK�ON�RTH C.C.# 2012 -10� 4 5 L24 ( P.R.D.C.T. Of tf1 tO QQ\- C, .9n 0 .................. o ? �\ MICHAEL J. BAITUP Off^ COUNTPYA SE NORTH ..y ..................... %... A 4574 CAB. U. PG. 625 p fir: LEG= CIRS Q P.R.D.C.T. ��•• oP �0 Q IRF IRON ROD FOUND gNO..... 5., O CIRS 5/8" IRON ROD WITH YELLOW S U R`I y PLASTIC CAP STAMPED 'JACOBS* SET CIRF 5/8' IRON ROD WITH YELLOW PLASTIC CAP STAMPED 'CARTER BURGESS` FOUND P.R.D.C.T. PLAT RECORDS, DENTON COUNTY. TEXAS R.P.R.D.C.T. REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS BEARING BASIS IS THE WEST LINE OF A TRACT OF LAND CONVEYED TO 8 OOMFIELD F RECORDED IN COUNTY CLERK'S FILE NO. 2013- 10870. REAL PROPERTY RECORDS, DE �-- -z� 1 22 2 0 U SCALE: 1' = 200' LINE BEARING DISTANCE L1 N00'06 45 "W 80.00' L2 N89'53'1 5 "E 221.33' L3 S00'06'45 "E 50.00' L4 N85'28'27 "E 220.00 L5 N47'47 33 "E 220.00 L6 N36'53 59 E 140.00' L7 S52'46'16 E 83.44' L8 S4657'1 3 E 69.30 L9 S36'53'59 W 117.43' L10 N53'06'01 "W 20.06' L11 S52'00'35 "W 50.00' L12 S42'37'37 "W 135.39' L13 536'53 59 "W 115.36' L14 S36'39'43 "W 87.97' L15 S48.31'12 "W 82.86 L16 S59.15'22 "W 82.89' L17 S69'59'33 "W 82.89 1_18 S80'03 41 "W 82.99' L19 S89.53'15 "W 144.59' 120 N00'06'45 "W 50.00' L21 S89'53'15 W 50.00 L22 S00'06'45 "E 80.00' L23 S89'53'15 W 116.70' L24 527'14'09 "E 50.00' L25 I N89.53.15 "E 37.07 L.P., AS AUNTY. TEXAS. DATE: 10/09/13 EXHIBIT B JACOBS SHEET SCALE: 1' - 200* DRAINAGE EASEMENT ABANDONMENT DRAWN TdY: S.C.O. OUT OF THE 1999 BRYAN STREET, SUITE 1200 6 OF 6 WILLIAM SMITH SURVEY ABSTRACT NO. 1182 do DALLAS, TEXAS 75201 -3136 THE MARY SMITH SURVEY, ABSTRACT NO. 1181 PHONE 214 -638 -0145 FAX 214 - 638 -0447 CHECKED 8Y: M.J.8. IN THE CITY OF DENTON, DENTON COUNTY, TEXAS I:\SLD\C3X464 \C3X46403 \700 CADD \713 Survey\713.5 Easement \C3X46403EX05.dwg, 1019/2013 11:09:44 AM City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 16 -271, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: March 1, 2016 SUBJECT Consider adoption of an ordinance directing the publication of Notice of Intention to issue $24,030,000 in principal amount of Certificates of Obligation of the City of Denton for General Government and Solid Waste projects; and providing for an effective date. The Audit/Finance Committee recommends approval (3 -0). BACKGROUND This ordinance provides the Notice of Intention to issue $24,030,000 in principal amount of Certificates of Obligation (COs) for General Government and Solid Waste projects, as required by state law. The notice will be published once a week for two consecutive weeks in the Denton Record Chronicle, with the date of the first publication to be at least thirty -one (3 1) days before the date tentatively set for the passage of the ordinance authorizing the issuance of the bonds. These bonds will provide funding of $8,125,000 for General Government and $15,700,000 for Solid Waste project costs. The additional $205,000 is for issuance costs and to allow flexibility in marketing and pricing the bond sale. Staff recommends the sale of $8,125,000 in COs for General Government. Below is a listing of recommended CO funded projects for General Government's FY 2015 -16 CIP: 1. Vehicle Replacements /Additions - $ 2,970,000 2. North Texas Boulevard Improvements - $ 330,000 3. Facilities Maintenance Program - $ 1,420,000 4. Land Acquisition and Construction for Fire Training Facility - $ 3,000,000 5. Parking Improvements - Exposition Parking Lot - $ 405,000 Total - $ 8,125,000 Staff recommends the sale of $15,700,000 in COs for Solid Waste projects. Below is a listing of recommended CO funded projects for Solid Waste's FY 2015 -16 CIP: 1. Roll Off Truck - $ 222,600 2. Auto Side Load Truck (Diesel) - $ 285,580 3. Auto Side Load Truck (Diesel) - $ 285,580 4. Auto Side Load Truck (CNG) - $ 316,940 City of Denton Page 1 of 4 Printed on 2/26/2016 File #: ID 16 -271, Version: 1 5. Rear Load Truck - $ 271,360 6. Front Load Truck (Diesel) - $ 281,220 7. Front Load Truck (Diesel) - $ 281,220 8. Front Load Truck (CNG) - $ 341,320 9. Cell 313/3C and 3D Development - $ 200,000 10. Solid Waste Equipment, Tarping, Pipe Welding, Wheels /Tires - $ 309,180 11. Skid Steer Loader with Implements - $ 100,000 12. Wheel Loader with Bucket - $ 250,000 13. Articulated Water Wagon - $ 640,000 14. Articulated Dump Truck - $ 565,000 15. Solid Waste and Environmental Engineering Services - $ 150,000 16. Mechanical Sweeper - $ 150,000 17. Drop Off Site Facility Upgrades - $ 20,000 18. Facility Slope Mower - $ 100,000 19. Air Pollution Control Equipment - $ 200,000 20. New Operations Building Furniture and Equipment - $ 300,000 2 L Leachate Recirculation Infrastructure Expansion - $ 100,000 22. Refuse /Recycling Carts and Containers - $ 75,000 23. Enhanced Leachate Recirculation Liquid Delivery System - $ 250,000 24. Waste Diversion Facility Operations - $ 450,000 25. Processing Equipment Trommel, Shakers, Screens - $ 1,000,000 26. Capital Improvement Project Labor - $ 255,000 27. 100 Yard Trailers - $ 90,000 28. Litter Control and Facility Improvements - $ 600,000 29. Facility Security, Walls, Fencing and Associated Improvements - $ 675,000 30. Ground Water Monitoring Wells - $ 50,000 31. Process Upgrades and Technology Improvements - $ 400,000 32. Permit Amendment Support Services - $ 250,000 33. Landfill Gas Production Line Construction - $ 100,000 34. Legal Services - $ 150,000 35. Water Line Relocation and Other Utility Infrastructure - $ 250,000 36. Solid Waste Fund Property Acquisition - $ 535,000 37. Regional Household Hazardous Waste Building Design & Construction - $ 2,800,000 38. Solid Waste Building Expansion - $ 2,400,000 Total - $15,700,000 CO funded projects totaling $22,905,000 were previously authorized through a reimbursement ordinance (Ord. 2015 -304). The City sells bonds in accordance with the useful life of the asset that is being acquired. For example, vehicles are typically sold with bonds that will be paid within five years. For the FY 2015 -16 proposed debt issuance for General Government and Solid Waste: $8,240,000 will be 5 year debt, $3,640,000 will be 10 year debt, and $11,945,000 will be 20 year debt. In addition, the 20 year debt issues will also have a 10 year call feature. Concurrently with the sale of the COs for General Government and Solid Waste, the City anticipates the sale of approximately $69,810,000 of COs for Water, Wastewater and Electric projects and approximately $47.12 million in General Obligation Refunding and Improvement Bonds fund the fourth year ($4.4 million) of City of Denton Page 2 of 4 Printed on 2/26/2016 File #: ID 16 -271, Version: 1 street/public arts projects approved by voters in November 2012, the second year ($16.78 million) of projects approved by voters in November 2014, and the refunding of existing general obligation debt. The refunding is contingent upon market conditions and it must meet the City's debt policy requirements. If approved by the City Council, staff will proceed with the publication of the Notice of Intention and will schedule the Bond Ordinance for consideration and adoption on April 5, 2016. At that time, it is anticipated that staff will request that the City Council authorize a "parameters sale." Under such an arrangement, staff will be permitted to execute the bond sale within six (6) months of April 5h, provided certain interest rate parameters are met. RECOMMENDATION Staff recommends adoption of the ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 23, 2016, the Audit/Finance Committee also received a presentation on the bond program and Notice of Intent Ordinance. FISCAL INFORMATION The ordinance is for the authorization to publish the Notice of Intention to sell $24,030,000 of Certificates of Obligation for General Government and Solid Waste projects. A notice is only required for the Certificates of Obligation. There is no statutory requirement to post such a notice for the General Obligation Refunding and Improvement Bonds, which will include the fourth year ($4.4 million) of street/public art projects approved by voters in November 2012, the second year ($16.78 million) of projects approved by voters in November 2014, and the refunding of existing general obligation debt. 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 1. Notice of Intent Ordinance 2. Red -Lined Changes to 2014 GO Bond Issuance Timeline Respectfully submitted: City of Denton Page 3 of 4 Printed on 2/26/2016 File M ID 16 -271, Version: 1 Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 4 of 4 Printed on 2/26/2016 h rvvm d by I cx:ls i''I Exhibit l ORDINANCE AN ORDINANCE [)lDBCT|NQT8CPUBIlC/\TiON0F NOTICE OFINTEN]\ONTOISSUE $24,00,0O0[M PRINCIPAL /\MDONTOPCBKTlPlC&]E'S0P0BLIG8T|ON OFTHE CITY OF DENTON FOR GENERAL GOVERNMENTAND SOLID WASTE PROJECTS; AND PROVIDING FOR AN EFFE"CTIVE DATE THE 8TATE0PTEXAS COUNTY0P0BNTDN CITY OF DENTON WHEREAS, it is dcoued ncuuaoury and advisable that the Notice of hdoxion 0o Issue Certificates of Obligation be given as hereinafter provided. THBC0UNC|LDF THE CIT'Y0FDCNTON HEREBY ORDAINS: Scuhnn L That attached hereto is a form of "NOTICE OF [WENTl0N T0 ISSUE CERTIFICATES OF OBLIGATION OFTHE CITY OF DENTON", tile form and substance of which are hereby adopted and approved, and made a part ofthis Ordinance for all purposes. Section D. That the City Secretary yhu| cause said NOTICE, in substantially the form attached hereto, 10 be published once u week for two consecutive weeks in u newspaper of general circulation in the City, with the date mfthe first publication 1* be at least thirty-one (3 1) days before the date tentatively set for the passage of the Ordinance authorizing the issuance o[ such Cedifiou1emufObligation. Section 0L That this Ordinance mbuU become effective immediately upon its passage and PASSED AND APPROVED this the I" day of March, 2016. Chris Watts, Mayor XrrEST: Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: Acton iBulgess' City t THE STATE DPTBX/\8 COUNTY 0FDBNTUN CITY OfDENTDN NOTICE Of"IN]ENTION TO ISSUE CERTIFICATES OF OBLIGATION OfTDE CITY OfDBNT0N (GENF,RAL GOVERNMENT AND SOLID WASTE PROJECTS THE CITY OFOENTON,inDenton County, Texas, hereby gives notice of its intention Nissue CITY Of,' DFI'NTON CERTIFICATES OFOBLIGATION, in accordance with the Certificate of Obligation Act of 1971, as amended and codified, and other applicable laws, in the nnuxinuum principal unnount of $24,030,000 [br the purpose of paying all or a portion of' the City's contractual obligations incurred Pursuant to unnLmctm for the purchase, construction and acquisition of certain real and peouou| property, to wit: (a) acquisition of vehicles and equipment for, and acquiring, constructing, installing and equipping additions, extensions, renovations and ilriprovements to, the City's solid waste disposal system, including the acquisition of land for the City )aodb\|; (b) renovations 1o, and equipping o[ , existing municipal buildings, including tile acquisition and installation o[ replacement heating, venting and air conditioning equipment, roofing and flooring; (c) acquisition of vehicles and cqoiprncn{ for 1hc fire, police, building inspections, community improvement services, uninuu\ services, akeu1m and buOlu control, facilities management, and parks and recreation departments; (d) acquiring, constructing, ioetu||iug and equipping additions, extensions, renovations and improvements 10 parking facilities; (e) constructing and improving u1rectm` including |oodaoapiuA, drainage, utility line ru\nnoiioos and the acquisition of land and rights-of-way therefor; (U acquiring, constructing, installing and equipping a new fire training facility; and (g) acquisition of land for o new fire m1uLiou; and also for the purpose of paying all or u portion of the City's contractual obligations for professional services, including engineers, architects, attorneys, nuupnnokon, auditors, and financial advisors, in connection with said projects uod said Certificates of Obligation. Tile City proposes to provide for the payment Of Such Certificates of Obligation from the levy and collection ofxd valorem taxes in the City aa provided by law, and from certain surplus revenues (not to osueud $1,000 in aggregate amount) derived by the City from the ownership and operation uf the City's Od|i1y System (consisting of the City's combined waterworks and ncv/ur myu\cuu and c|ooLric light and pmvvcr system). The City Council of tile City tentatively proposes to authorize the issuance of such Certificates of Obligation at a meeting commencing at 6:30 p.m. oil the 5th day of April, 2016, in the City Council roono at the Municipal Building (City Hall), 215 E. McKinney, Deuton,Tcnaa. CITY 0F0EN]l}N,TEXAS By: Jennifer K.Walters, City Secretary N W O O O O O O O O O C :) - O 0 0 O �-I O m V J C V1 O' V1 � tH N I!f lD � O ul Y t11 a' t11 D1 N N N n lD O LD a N N N M N N 1? VT V! V! 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 16 -272, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: March 1, 2016 SUBJECT Consider adoption of an ordinance directing the publication of Notice of Intention to issue $69,810,000 in principal amount of Certificates of Obligation of the City of Denton for Waterworks and Sewer System and Electric System projects; and providing for an effective date. The Audit/Finance Committee recommends approval (3 -0). BACKGROUND This ordinance provides the Notice of Intention to issue $69,810,000 in principal amount of Certificates of Obligation (COs) for Water, Wastewater and Electric projects, as required by state law. The notice will be published once a week for two consecutive weeks in the Denton Record Chronicle, with the date of the first publication to be at least thirty -one (31) days before the date tentatively set for the passage of the ordinance authorizing the issuance of the bonds. These bonds will provide funding of $7,500,000 for Water, $3,870,000 for Wastewater and $57,850,000 for Electric project costs. The additional $590,000 is for issuance costs and to allow flexibility in marketing and pricing the bond sale. Staff recommends the sale of $7,500,000 in COs for Water projects. Below is a listing of recommended CO funded projects for Water's FY 2015 -16 CIP: 1. Elm Street Relocate - $ 1,300,000 2. Lake Ray Roberts Zebra Mussel Control - $ 900,000 3. Fort Worth Drive Relocate $ 2,600,000 4. I -35 Expansion $ 500,000 5. Hwy 380 to I -35 Transmission Line $ 1,600,000 6. McKinney Transmission Line - $ 600,000 Total - Water $ 7,500,000 Staff recommends the sale of $3,870,000 in COs for Wastewater projects. Below is a listing of recommended CO funded projects for Wastewater's FY 2015 -16 CIP: 1. Vehicles & Equipment - $ 470,000 2. Fort Worth Drive Relocate - $ 1,675,000 City of Denton Page 1 of 4 Printed on 2/26/2016 File #: ID 16 -272, Version: 1 3. Elm Street Relocate - 4. Lab Improvements 5. Oversize Lines 6. Effluent Reuse Line - Total - Wastewater $ 1,300,000 $ 200,000 $ 200,000 $ 25,000 $ 3,870,000 Staff recommends the sale of $57,850,000 in COs for Electric projects. Below is a listing of recommended CO funded projects for Electric's FY 2015 -16 CIP, which is broken down between transmission and distribution projects. Transmission projects represent approximately 68% of Electric's total bond sale and are eligible for Transmission Costs of Service (TCOS) recovery through rates charged to other utilities as mandated by the Public Utilities Commission of Texas. 1. Kings Row Substation - $ 585,000 2. Pockrus Substation - $ 1,280,000 3. Locust Substation - $ 4,302,000 4. Denton North Interchange - $ 1,852,000 5. Arco Substation - $ 1,669,000 6. Hickory Substation - $ 2,463,000 7. Eagle Substation - $ 1,070,000 8. RD Wells Interchange - $ 1,242,000 9. Mayhill Substation - $ 2,617,000 10. North Spencer Substation - $ 5,765,000 11. Teasley Substation Switchgear - $ 662,000 12. Long Road Substation - $ 944,000 13. Woodrow Substation - $ 1,740,000 14. North Lakes Substation - $ 360,000 15. Various Substation RTU Installs - $ 249,000 16. Other Substation Projects - $ 1,773,000 17. Woodrow /Kings Row Transmission Line - $ 396,000 18. Bonnie Brae/North Lakes Transmission Line - $ 751,000 19. Pockrus /Mayhill Transmission Line - $ 1,949,000 20. Spencer Switch/Locust Transmission Line - $ 369,000 21. Denton North/North Lakes Transmission Line - $ 1,053,000 22. Hickory /Locust Transmission Line - $ 3,404,000 23. New 138 kV Transmission Line from North Spencer /Loop 288 - $ 639,000 24. New 138 kV Transmission Line to connect North Spencer /Loop 288 - $ 430,000 25. New 138 kV Transmission Line to connect Woodrow /Spencer - $ 343,000 26. Transmission Line Additions to support Arco Reconstruction - $ 452,000 27. Transmission Line Routing Study - $ 312,000 28. Other Transmission Line Projects - $ 557,000 Subtotal - Electric Transmission Projects $39,228,000 29. Automated Meter Reading - $ 1,069,000 30. Building Construction - $ 775,000 31. Communications Equipment - $ 183,000 32. Office Furniture and Computer Equipment - $ 638,000 33. Distribution Transformers - $ 1,620,000 34. Feeders and Extensions - $10,221,000 City of Denton Page 2 of 4 Printed on 2/26/2016 File M ID 16 -272, Version: 1 35. New Residential and Commercial - $ 3,067,000 36. Over/Under Conversions and Power Factor Improvements - $ 566,000 37. Street Lighting - $ 483,000 Subtotal - Electric Distribution Projects $18,622,000 Total COs for Electric - $57,850,000 CO funded Electric projects totaling $57,850,000 were previously authorized through a reimbursement ordinance (Ord. 2015 -304). The City sells bonds in accordance with the useful life of the asset that is being acquired. For example, vehicles are typically sold with bonds that will be paid within five years. For the FY 2015 -16 proposed debt issuance for Water, Wastewater and Electric: $470,000 will be 5 year debt, $10,900,000 will be 20 year debt and $57,850,000 will be 30 year debt. In addition, the debt issues will have a 10 year call feature. Concurrently with the sale of the COs for Water, Wastewater and Electric projects, the City anticipates the sale of approximately $24,030,000 of COs for General Government and Solid Waste projects and approximately $47.12 million in General Obligation Refunding and Improvement Bonds fund the fourth year ($4.4 million) of street/public arts projects approved by voters in November 2012, the second year ($16.78 million) of projects approved by voters in November 2014, and the refunding of existing general obligation debt. The refunding is contingent upon market conditions and it must meet the City's debt policy requirements. If approved by the City Council, staff will proceed with the publication of the Notice of Intention and will schedule the Bond Ordinance for consideration and adoption on April 5, 2016. At that time, it is anticipated that staff will request that the City Council authorize a "parameters sale." Under such an arrangement, staff will be permitted to execute the bond sale within six (6) months of April 5h, provided certain interest rate parameters are met. RECOMMENDATION Staff recommends adoption of the ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 23, 2016, the Audit/Finance Committee also received a presentation on the bond program and Notice of Intent Ordinance. FISCAL INFORMATION The ordinance is for the authorization to publish the Notice of Intention to sell $69,810,000 of Certificates of Obligation for Water, Wastewater and Electric projects. A notice is only required for the Certificates of Obligation. There is no statutory requirement to post such a notice for the General Obligation Refunding and Improvement Bonds, which will the fourth year ($4.4 million) of street/public arts projects approved by voters in November 2012, the second year ($16.78 million) of projects approved by voters in November 2014, and the refunding of existing general obligation debt. STRATEGIC PLAN RELATIONSHIP City of Denton Page 3 of 4 Printed on 2/26/2016 File #: ID 16 -272, Version: 1 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 1. Notice of Intent Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 4 of 4 Printed on 2/26/2016 � 1% Exhibit l ORDINANCE NO. 20|6- AN ORDINANCE DT&BCT1N0]FBB PUBLICATION 0P NOTICE OPONTEN7lONT0ISSUE $69,8|8,O00UN PRINCIPAL AMOUNT 0F CERTIFICATES OP OBLIGATION OfTUB CITY OF DENTON FOR WATERWORKS AND SEWER SYSTEM AND ELECTRIC SYSTEM PROJECTS; AND PROVIDING FOR AN EFFECTIVE DATE THE STATE OPTCXAS COUNTY OFDENTON CITY 0F0ENT0N W|ERBA8, it is deemed necessary and advisable that the Notice nf Intention k` Issue Certificates of Obligation be given as hereinafter provided. THE COUNCIL 0FT8B CITY OfDBN7T)NUE,"R6UYORDAINS: 8eutkm i That attached hereto is u form of 'N()l.CE OF INTENTION TO ISSUE CERTIFICATES 0PO0[[O&TlONOFTNR CITY OPDENTDN"` the form and substance of which are hereby adopted and approved, and made a part of this Ordinance for all purposes. Scudoo D. That the City Secretary mho| cause said NOTICE, in substantially the form o|tambud hereto, to be published once a week for two consecutive weeks in a newspaper of general circulation in the City, with the date o[ the fim1publication \obea1 least thirty-one (3\) days before the date tentatively set for the passage of tile Ordinance authorizing tile issuance of such Certificates of Obligation. Section Ill. That this Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the I st day of March, 2016. Chris Watts, Mayor ATTEST: Jennifer Walters, City Secretary APPROVED AS'ro LEGAL FORM: " a B _rgess, C-lt'Y Attor Ll THE STATE DETCX/\S COUNTY OPDENION CITY DPD8NTON NOTICE 0[INTENTION TO ISSUE CERTIFICATES DFOBLIGATION OFTHE CITY OF DENTON (WATERWORKS AND SEWER SYSTEM AND ELECTRIC SYSTEM PROJECTS THE CITY (}PDBNTON,in Denton County, Texas, hereby gives notice of its intention 0nissue CITY OF DENTON CERTIFICA'FES OF OBLIGATION, in accordance with the Certificate of Obligation Act nflY7l' as uoo*odod and codified, and other applicable laws, in the nnnsicuunn yducipu| amount of $69,8 10,000 for the purpose of paying all or a portion of the City's contractual obligations incurred pursuant to contracts fbr\be purchase, construction and acquisition of certain real and personal property, to *i1: (a) acquisition of vuhiu|co and equipment :or, and acquiring, constructing, installing and equipping oddhiuns, extensions, renovations and improvements to, the City's waterworks and sewer syaicno; (b) acquisition of equipment for, and acquiring, constructing, installing and equipping additions, extensions, renovations and improvements to, the City's clmcidu light and power system; and also for the purpose of paying all oru portion of|hu City's contractual obligations for professional services, including engineers, uccbdco1m, attorneys, noup onnkmra` auditors, and financial advisors, in connection with said projects and said Cmdificu1ca of Obligation. 'file City proposes to provide for the payment of such Certificates of Obligation froni the levy and collection of ad valorern taxes in the City as provided by law, and from certain surplus revenues (not to exceed $1,000 in aggregate amount) derived by the City from the ownership and operation of the City's Utility System (consisting of the City's combined waterworks and sewer system and electric light and pnvvcr eym1cnu). The City Council of the City tentatively proposes to authorize the imeuouco ofmuoh [ediGuu1ca of Obligation at u xuooiing uornmoncing at 6:30 p.m. on the 51h day of April, 2016, ill the City Council room at the Municipal Building (City Bu||), 215 E. McKinney, Dmntoo,Toxaa. CITY D�QCNTON,TEXAS 8y: Jennifer K. Walters, City Secretary City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -281, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Caterpillar Model 953D track loader for the City of Denton Drainage Department; and providing an effective date (File 6070- awarded to Holt CAT in the amount of $213,950). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION This Caterpillar Model 953D track loader is a replacement for a 1997 Caterpillar Model 953 that has met the Fleet Department's replacement criteria regarding age and repair costs. The Caterpillar Model 953D will be purchased through the Buy Board Cooperative Purchasing Network Contract# 424 -13. Quotes were obtained from two (2) cooperative contract vendors (Exhibit 1). There is one (1) other company that manufactures this equipment but they are located out of state, so repair and maintenance would not be timely or cost effective. Staff is recommending the purchase of the Caterpillar Model 953 because of higher horsepower rating with a lower operating weight. The Caterpillar warranty includes the cost of oil sampling that the John Deere does not include, which results in a lower cost of ownership. The Fleet Department also recommends the purchase of CAT equipment to standardize the City's construction equipment. Fleet technicians have been trained on CAT products and the Department has the necessary diagnostic software and specialty tools to maintain the equipment (Exhibit 2). RECOMMENDATION Award the purchase of one (1) Caterpillar Model 953D Track Loader from Holt CAT in the amount of $213,950. PRINCIPAL PLACE OF BUSINESS Holt CAT Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT City of Denton Page 1 of 2 Printed on 2/25/2016 File #: ID 16 -281, Version: 1 The purchase and delivery the track loader will occur within 90 days of purchase order issuance. FISCAL INFORMATION The track loader (Fleet ID4DR16108) will be funded from Wastewater Fund Drainage operating account 655025645.1355.30100. Requisition 4127913 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 EXHIBITS Exhibit l: Comparison and Quotes Exhibit 2: Holt CAT Standardization Memo Exhibit 3: Public Utilities Board Minutes Exhibit 4: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Terry Kader at 349 -8729. City of Denton Page 2 of 2 Printed on 2/25/2016 • • • • • • • • • NTOI 0 N fa W, E 0 LL c Ll C> CD - C) rD 0) CD r" CD Ln Z 00 4d).- iA- 0- 0 E 0 0 CL C: x (U LU 0 -0 r) r- (U >, CN Ln :3 U 0 07 70 LU z CD rn Ln CD 0- r) C) Ql C) O m 00 UJ 0 E C) C) u 0 rj "o CD CD CD O C) C) N 00 CD 0) Ln CD Ln 6 a) u Z Cr� Ci U-) •u " .10 M 4d).- iA- 4-J -o 0- 0 -0 0) E 0 0 E _0 M C> 41 0 rN o r) a U 00 -0 >1 Nt CN 0 OL 0 0 :3 -j r) c LL co 0- C) Lr) L- c) (3) C) t.0 4-J ro UJ U 0 0 E C) C) 0 -0 N l0 00 U- C: 0) Q) C: 0 E C: u 0 E -0 0 Q) 0 W I u Q) 0 0 E Q) CL 0 0 V Ln w w co < Q) Q) E LU 0 < D =) t 0 0 Ul I co U) E 0 LL c Ll Quote 167347 -01 EXHIBIT 1 February 9, 2016 CITY OF DENTON FLEET SERVICES 804 TEXAS ST DENTON, TEXAS 762094330 Attention: CHARLIE ROSENDAHL RE: Quote 167347 -01 Dear Charlie Rosendahl, Thank you for this opportunity to quote Caterpillar products for your business needs. We are pleased to quote the following for your purchase consideration. One (1) New CATERPILLAR INC Model: 953D Track Loaders with all standard equipment in addition to the additional specifications listed below: STOCK NUMBER: HLK027553 SERIAL NUMBER: OLBP02026 YEAR: 2016 SMU: 4 STANDARD EQUIPMENT POWERTRAIN - For Europe: Caterpillar C6.6 ACERT - Diesel engine, EU Stage IIIA Certified - Engine OR EU Stage IIIA Flexibility - Engine. - For ADSD -N : Caterpillar C6.6 ACERT - Diesel engine, EPA/ARB Flexibility - Engine. - Others: Caterpillar C6.6 ACERT Diesel - engine, meets non - current Tier 3 OR - Stage I IIA emission levels. - Oil change - Engine. - Turbo charged with ATAAC - For ADSD -N : Caterpillar C6.6 ACERT - Modular cooling system for engine air - Dieles Engine, EPA/ARBFlexibility - intake, oil and water - Engine. - Fan radiator, electronically - controlled, hydraulically driven, - temperature sensing, on demand - Electro Hydrostatic Control (EHC) for - transmission with travel and work modes - Fuel priming pump, electric - Water separator - Air cleaner dry -type, axial seal - with integral precleaner and dust - ejection system, electronic filter - condition indicator - Muffler, under hood - Starting aid ether injection - Caterpillar extended life coolant UNDERCARRIAGE - Caterpillar Enhanced SALT tracks - Track guiding guards, end section - Track adjuster, hydraulic - Sprocket rims, with replaceable bolt -on - Tough Steel segments - Guards, sprocket - 6 track rollers per side, and one - upper carrier rollers, lifetime - lubricated - Idlers, conventional type - lifetime lubricated - Oscillating track roller frames ELECTRICAL - Alternator, 24 volt, heavy duty - brushless. - Alarm, backup - Horn, electric - 2 heavy duty batteries, high output, - maintenance free, 900 CCA. - Switch, main disconnect - Starter, electric (heavy duty, 24 volt) - Four halogen lights, two facing forward, - roof mounted; two facing rearward - integrated in A/C unit. - OPERATOR ENVIRONMENT - Pressurized, sound suppressed, ROPS /FOPS - Cab with tinted glass and right - side sliding window - Air conditioning and heating - Heater / defroster with automatic - temperature control - Seat, fabric - covered, air suspended - adjustable - Electro Hydraulic Seat mounted control - levers - Seat belt, retractable - Cat Messenger - Electronic Monitoring System - with gauges for: - - engine coolant temperature - - hydraulic oil temperature - - engine oil pressure - - fuel level - Mirror, rearview, inside, adjustable - Radio ready. Includes 24 to 12 volt - converter, speakers, antenna and - Two 12 volt power outlets - Coat hook - Storage compartments under left armrest - Document holder on right console - Floor mat, rubber, heavy duty - Windshield washers and wipers, - multiple speed front and rear - Durable metal roof - Parking brake switch and & #39; & #39;brake- on & #39; & #39; - indicator light - OTHER STANDARD EQUIPMENT - Sound Suppression, Exterior - Z -bar loader linkage - Load Sensing variable displacement - implement pump - Implement cylinders with integrated - positionning sensors - Operator programmable lift and tilt - kickouts - Engine enclosure with lockable doors - Radiator core 6.5fpi, debris resistant - Hinged Radiator Guard and swing out fan - Guards, full bottom - Ecology drains on hydraulic oil tank - Product Link ready - Oil sampling valves - Hoses, Caterpillar XT - HYDO Advanced 10 - Page 1 of 3 Quote 167347 -01 EXHIBIT 1 MACHINE SPECIFICATIONS ANTIFREEZE, -50C ( -58F) TOTAL LIST PRICE $283,784 BUYBOARD MINIMUM 12% DISCOUNT #424 -13 Sell Price $213,950 Ext Warranty Included Total $213,950 WARRANTY Standard Warranty: 12 Month / Unlimited Hour Total Machine Extended Warranty: 60 Month / 3,000 Hour Premier Extended Warranty F.0.13/TERMS: Fort Worth - Machine Division Page 2 of 3 Accepted by 16311 Signature Quote 167347 -01 EXHIBIT 1 Thank you for your interest in Holt CAT and Caterpillar products for your business needs. This quotation is valid for 30 days, after which time we reserve the right to re- quote. If there are any questions, please do not hesitate to contact me. Sincerely, Bryan Nichols Machine Sales Representative Holt CAT Bryan. Nichols @holtcat.com 817.308.6612 Page 3 of 3 JOHN DEERE Proposal for: CITY OF DENTON ACCOUNTS PAYABLE 215 E MCKINNEY ST DENTON, TX, 762014299 DENTON (940) 349 -8410 Investment Proposal (Quote) RDO Equipment Co. 2902 N Central Expy McKinney TX, 75071 Phone: (214) 542 -7431 - Fax: Investment Proposal Date: Pricing Valid Until: Deal Number: Customer Account#: Sales Professional: Phone: Fax: Email: EXHIBIT I 12/18/2015 1/17/2016 835803 8410003 Justen Phillips (972) 438 -4699 (972) 438 -6789 JPhillips @rdoequipment.com Equipment Information Quantity Serial Hours Status / Year / Make / Model Cash Price Number (approx.) Additional Items 1 TBD 0 New 2016 JOHN DEERE 655K $279,326.00 Equipment Options Serial Number TBD Customer Discount BuyBoard Discount Contract 424 -13 ($41,898.90) Customer Discount Customer Loyalty Discount ($32,500.00) Warranty -John Deere Full Extended -60 Months, 3000 $8,843.00 Hours, Deductible: 250 Year / Make / Model 2016 JOHN DEERE 655K Equipment Subtotal: $213,770.10 Balance: Total Taxable Amount: Sales Tax Total: Sub Total: Cash with Order: Balance Due: 9820T 655K CRAWLER LOADER 1710 JDLINK ULTIMATE 5 YEAR 3010 2 AXIS JOYSTICK 3520 HYD FAN DRIVE WITH REV MOTOR 4620 AT354699 20" EXT LIFE W /SC2 5085 CAB PARTS - DUBUQUE 5885 DELUXE AIR SUSP CLOTH SEAT 7110 SLC W/O FRONT HYDRAULICS 8010 GREASE, OIL, FU EL &COOLANT 8710 GENERAL PURPOSE BUCKET 8820 BOLT -ON CUTTING SEG W /TEETH 9090 REAR HYD CONTROLS & PLUMBING 9150 ROCKGUARDS 9187 MULTI SHANK RIPPER W/3 SHANK $213,770.10 $213,770.10 $0.00 $213,770.10 $0.00 $213,770.10 D835803 Page 1 of 1 EXHIBIT 2 MEMORANDUM DATE: November 6, 2015 TO: Elton Brock FROM: Terry Kader Fleet Services Superintendent CC: Antonio Puente SUBJECT: HOLT CATERPILLAR 1 Q J 11� M FN'T PURCHASE Fleet Services is recommending the purchase of construction equipment from HOLT Caterpillar, the authorized North Texas dealer for sales and service of Caterpillar equipment. HOLT CAT has been utilized by Fleet Services for many years. The City currently has 3 CAT motorgraders, 13 CAT backhoes and 3 CAT rollers in service. Fleet technicians are trained on the CAT products and have access to advanced training through HOLT CAT. Many parts are also currently stocked for this series of construction equipment along with diagnostic software and specialty tools. These factors translate into improve efficiencies and productivity which minimize costs. I believe the purchase of construction equipment from HOLT CAT, is the best value for the City of Denton and I am respectfully requesting authorization to continue these purchases. R µgards, Iwo „� Kader Fleet Services Superintendent 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 EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD February 22, 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, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, Barbara Russell, and Brendan Carroll Absent: Susan Parker and Lilia Bynum Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA C. PUB16 -037 - Consider recommending adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Network for the acquisition of one (1) Caterpillar model 953D track loader for the City of Denton Drainage Department; and providing an effective date (File 6070- awarded to Holt Cat in the amount of $213,950) There was a motion by Board Member Russell to approve item C and a second by Board Member Gallivan. Vote 5 -0 approved. Adjournment 10:53 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE BUY BOARD COOPERATIVE PURCHASING NETWORK FOR THE ACQUISITION OF ONE (1) CATERPILLAR MODEL 953D TRACK LOADER FOR THE CITY OF DENTON DRAINAGE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 6070 - AWARDED TO HOLT CAT IN THE AMOUNT OF $213,950). WHEREAS, pursuant to Ordinance 2005 -034, the Buy Board Cooperative Purchasing Network has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Buy Board Cooperative Purchasing Network programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 6070 Holt CAT $213,950 SECTION 2. By the acceptance and approval of the items set forth in the referenced file number, the City accepts the offer of the persons submitting the bids to the Buy Board Cooperative Purchasing Network for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Buy Board Cooperative Purchasing Network and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the referenced file number wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Buy Board Cooperative Purchasing Network, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, EXHIBIT 4 conditions, specifications and standards contained in the Proposal submitted to the Buy Board Cooperative Purchasing Network, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6070 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the items set forth in the referenced file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders or pursuant to a written contract made pursuant thereto as authorized herein SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �01 µ BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -282, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for construction of Substation Pre -Cast Security Fences for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5963- awarded to Walsh's Hawk Construction Company, LLC in the three (3) year not -to- exceed amount of amount of $5,900,000). The Public Utilities Board recommends approval (5 -0). RFP INFORMATION Denton Municipal Electric (DME) has several substation projects approved in its five (5) year Capital Improvement Plan (CIP). Recent CIP projects have included precast concrete security /screening fences, with three of those projects successfully completed by Walsh's Hawk Construction Company. RFP 45963 was prepared to solicit proposals for the construction of security fences during the next three (3) years. Construction of the precast concrete fences is necessary to provide the required perimeter security for the substations. The substation fences will be constructed using Verti -Crete precast concrete panels. The panels will be supported by concrete columns mounted on engineered pier foundations. The panels will have a Ledge Stone pattern. The columns will have an Ashlar Stone pattern. The panels and columns will be permanently stained with colors previously selected by DME staff and will match existing precast fences. The estimated total length of fence construction required for the next three (3) years is 27,500 linear feet. The average substation fence will be approximately 1500 to 2500 linear feet. The perimeter fences will be 10 feet in height and do not include gates. Gates will be procured and installed separately. Request for Proposals were sent to 485 prospective suppliers. Three (3) proposals meeting the minimum qualifications were received. The committee reviewed each proposal and determined that Walsh's Hawk Construction Company ( Walsh's Hawk) provided the best value. Although Walsh's Hawk was not the lowest cost proposal, they provide the shortest delivery time at only 42 days. The quick delivery assists in DME meeting their construction timelines. In addition, Walsh's Hawk has provided quality construction on four (4) previous projects with the City. The lowest cost firm has not completed a project with the City, and proposed a wall construction type that isn't as flexible as the solution provided by Walsh's Hawk. A Best and Final Offer (BAFO) was requested from the highest ranked proposer, Walsh's Hawk Construction Company, LLC. The BAFO resulted in a three (3) year estimated savings of $33,752 (Exhibit 1). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -282, Version: 1 On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award to Walsh's Hawk Construction Company, LLC in the three (3) year not -to- exceed amount of amount of $5,900,000. PRINCIPAL PLACE OF BUSINESS Walsh's Hawk Construction Company, LLC Princeton, 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 costs for services provided under the proposed agreement will be funded out of amounts budgeted for specific CIP projects. The majority of work proposed will be in the transmission category. Therefore, these costs for transmission projects will ultimately be recovered through the Public Utility Commission of Texas, Transmission Cost of Service Program (TCOS). Separate purchase orders will be issued for each individual project based upon the unit prices and the engineer's estimate of the work required for each project site. 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 2/25/2016 File M ID 16 -282, Version: 1 For information concerning this acquisition, contact: Chris Lutrick at 349 -7152. City of Denton Page 3 of 3 Printed on 2/25/2016 h rvvm d by I cx:ls i''I � C� 'r, ci v ml VW �f 6 �Oml O �Oml VW V� V� O �Oml � 71 o wj E E LlC4 1 1 x � C� 'r, ci v EXHIBIT 2 1 DRAFT MINUTES 2 PUBLIC UTILITIES BOARD 3 February 22, 2016 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is 6 present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on 7 Monday, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of 8 Denton Service Center, 901 A Texas Street, Denton, Texas. 9 10 Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, 11 Barbara Russell, and Brendan Carroll 12 13 Absent: Susan Parker and Lilia Bynum 14 15 Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities 16 17 OPEN MEETING 18 19 CONSENT AGENDA 20 A. PUB16 -039 - Receive a report, hold a discussion, and give staff direction regarding a 21 recommendation that the City Council approve a contract with Walsh's Hawk Construction 22 Company, LLC, a limited liability corporation, Princeton, Texas, for constructing precast 23 concrete security /screening fences, in an amount not to exceed $5,900,000 over the course of 24 a three year period. (RFP 45963) 25 26 Chris Lutrick, Engineer IV DME, gave the presentation for this item. Within the last three years 27 DME has brought five individual projects to this Board to construct the security and screening 28 walls for the substations. The presentation included CIP substation project requiring fence 29 construction, summary of proposals, and completed projects constructed by Hawk. A map of 13 30 CIP Substation Projects was shown. There was three qualified respondents to the RFP. A 31 BAFO was requested of Hawk and they lowered their price and was awarded the contract which 32 was not to exceed $5.9 million. 33 34 Hawk has completed three major projects for DME which included Cooper Creek Substation 35 (2013), McKinney Substation (2015) and Pockrus Substation (2014). The Linda McNatt Animal 36 Shelter wall was also constructed by Hawk with volume pricing. 37 38 There was a motion by Board Member Russell to approve this item and a second by Board 39 Member Gallivan. Vote 5 -0 approved. 40 41 Adjournment 10:53 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR CONSTRUCTION OF SUBSTATION PRE -CAST SECURITY FENCES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5963- AWARDED TO WALSH'S HAWK CONSTRUCTION COMPANY, LLC IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF AMOUNT OF $5,900,000). 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 5963 Walsh's Hawk Construction Company, LLC $5,900,000 SECTION 2. The acceptance and approval of the above competitive proposals shall not constitute a contract between the City and the person submitting the proposal for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Proposers including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the proposals accepted and approved herein, provided that such contracts are made in accordance with the Notice to Proposers and Request for Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. EXHIBIT 3 SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under RFP 5963 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 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND WALSH'S HAWK CONSTRUCTION COMPANY, LLC (RFP 5963) THIS CONTRACT is made and entered into this day , by and between Walsh's Hawk Construction Company, LLC a limited liability corporation, whose address is 5002 Highway 380, Princeton, TX 75407, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home - Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. 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 construction services in accordance with the City's RFP 4 5963 Substation Precast Security Fence Construction Services, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes as "Exhibit C ". 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) Individual Project Initiation Process (Exhibit "B "); (c) City of Denton Request for Proposal 4 5963 (Exhibit "C ") (d) City of Denton Standard Terms and Conditions (Exhibit "D "); (e) Insurance Requirements (Exhibit "E "); (f) Certificate of Interested Parties Electronic Filing (Exhibit "F "); (g) Contractor's Proposal. (Exhibit "G "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to this written Contract, and then to the contract documents in the sequential order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. Contract 5963 EXHIBIT 4 "CONTRACTOR" Walsh's Hawk Construction Co., LLC By: rDocuSigned by: L)�� TTY YGED SIGNATURE John Walsh TYPED NAME: Administrator TITLE: 972 - 547 -6652 PHONE NUMBER john @hawkprecast.com E -MAIL ADDRESS 2016 -11800 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS A Texas Municipal Corporation wo ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY D ocu Signed by: By: L�6, ocu S21996C2A2E3439... Contract 5963 GEORGE C. CAMPBELL CITY MANAGER EXHIBIT 4 EXHIBIT A SPECIAL TERMS AND CONDITIONS Total Contract Amount The contact total for services shall not exceed $5,900,000. Pricing shall be per Exhibit G attached. Contract Term The contract term shall be for a one (1) year from the date of award. The City and the Awarded Contractor shall have the option to renew this contract for an additional two (2) one -year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the Exhibit B. 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 Adjustments Prices shall increase 3% annually at the renewal date. Scope Modification The scope as defined in the RFP 5963 (Exhibit C) shall be modified or clarified to include: • In the event that ground water is encountered during pier drilling, dewatering and caissons may be required. These are excluded from the contract pricing and will be negotiated on a case by case basis dependent on the extent of the required services. • Hydro- vacuum excavation by others if needed, compaction by others to 95% • Gates to be manufacture red and installed by others. • Temporary fencing to be installed and removed by others. • DME to locate and expose any underground utilities. Contract 5963 EXHIBIT 4 Exhibit B Individual Project Initiation Process Construction of Substation Precast Security Fences This section establishes the process whereby individual construction projects will be initiated. It is a general outline of the steps to be taken in setting project construction schedules and establishing project prices. The steps are generally in order of occurrence; however, nothing herein precludes the parties from agreeing to an amended approach for any given project. 1. The starting point for the process shall be when the project plans are delivered to the contractor by DME with indication of a preferred start date. The preferred start date shall not be less than 30 calendar days from the date the plans are delivered to the contractor. Longer planning periods are permissible. Project plans shall include a list of owner furnished material and projected dates of availability and a status of the site preparation. DME and the contractor will coordinate, to the extent feasible, in the development phases of projects to better facilitate planning for both parties. Benefits could be realized in long range budget forecasting, better project timing, constructability planning, and in coordinating and optimizing contractor resources and availability. 2. The contractor shall acknowledge receipt of the plans, indicate acceptance of the planned start date or propose an alternate start date, and shall propose a preconstruction conference to discuss the project. The preconstruction conference shall be scheduled not less than 14 calendar days before the preferred start date. 3. At the preconstruction conference, the following actions are expected: a. The contractor shall provide: 1) A formal estimate of the cost based on the contract unit costs in force at the time of the notice based on the units shown on the project plans 2) A proposed time to be allowed for construction at the preconstruction conference 3) A project plan for the construction 4) A list of classification and quantity of expected personnel that will be assigned to the project 5) A list of the type and quantity of expected equipment that will be assigned to the project 6) Indicate a date when bonds may be expected to be received by Purchasing if the project is over $50,000 7) Raise any issues of concern b. DME shall provide: 1) Revised project plans, if any 2) A description of the project and constraints and answer questions 3) An updated list of owner furnished materials and projected dates of availability if there have been any changes from the initial list 4) An estimate of cost based on the units shown on the plans 5) An update to the status of site preparation if there have been any changes Contract 5963 EXHIBIT 4 6) Raise any issues of concern c. Jointly, both parties shall (some items may require additional time after the preconstruction conference for resolution. Resolution must be achieved before the purchase order can be issued): 1) Review the project plan 2) Attempt to arrive at a final cost estimate 3) Establish a formal project start for mobilization 4) Establish a formal project time for construction 5) Attempt to resolve concerns on all issues or agree on a process and time for resolving issues 3. After a formal start date and pricing are established: a. DME will enter the requisition for the purchase order based on the agreed pricing. b. The contractor shall provide bonds equal to 100% of the project estimate to Purchasing at 901B Texas Street, Denton TX 76209. c. Purchasing shall acknowledge receipt of bonds via email to the contractor and DME. d. Purchasing shall issue the purchase order with 5% retainage which shall serve as the official notice to proceed. Contract 5963 EXHIBIT 4 EXHIBIT D City of Denton's Standard Terms and Conditions Invoices, Payments, and Releases 1. INVOICES AND PAYMENT PROCESSING: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing.com. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of Chris Lutrick, City of Denton Electric Department, 1701C Spencer Road, Denton, TX 76209. The copy may also be emailed to Mr. Lutrick at chris.lutrick @cityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payment within the first five days of the month, and submitted on the Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling 495 -0.07 and 495 -0.09. 3. PAYMENTS TO CONTRACTORS: A. Upon presentation of valid invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety- five percent (95 %) of each payment request approved during the construction of the Contract 5963 EXHIBIT 4 project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not later than ninety (90) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless such excess shall have been approved in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Upon award of the contract, the Contractor shall inform the Owner of the subcontractors and material sources that will be used. Upon the completion by the Contractor of the construction of the project, but prior to final payment to the Contractor, the Contractor shall deliver to the Owner releases of all liens, and of rights to claim any lien, from all manufacturers, material -men, and subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Owner is released from all such claims. 5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS: The Contractor shall pay each material -men, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each material -men or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and /or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the Contract 5963 EXHIBIT 4 construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, equipment, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages The time of the completion of construction of the project is of the essence of the contract. Should the Contractor neglect, refuse or fail to complete the construction within the time herein agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event and in view of the difficulty of estimating with exactness damages caused by such delay, the Owner shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per day for each and every day, including weekends, that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty; if the amount due and to become due from the Owner to the Contractor is insufficient to pay in full any such liquidated damages, the Contractor shall pay to the Owner the amount necessary to effect such payment in full: Provided, however, that the Owner shall promptly notify the Contractor in writing of the manner in which the amount retained, deducted or claimed as liquidated damages was computed. C. Cumulative Remedies Every right or remedy herein conferred upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. Contract 5963 EXHIBIT 4 CITY OF DENTON GENERAL CONDITIONS FOR CONSTRUCTION ARTICLE 1 GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the Owner and the Contractor, these General Conditions and other supplementary conditions included by special provisions or addenda, drawings, specifications, addenda issued prior to execution of the Contract, other documents listed in the Contract, and Amendments issued after execution of the Contract. For purposes of these General Conditions, an Amendment is: (1) a written Supplemental Agreement to the Contract signed by authorized representatives of both parties; (2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or (3) a written order for a minor change in the Work issued by the Architect/Engineer as described in Paragraph 7.3. The Contract Documents also include bid documents such as the Owner's Instructions to Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents, and any other documents, exhibits or attachments specifically enumerated in the Building Construction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Contractor. b) THE CONTRACT The Contract Documents, as defined in Paragraph 1.1, are expressly incorporated into and made a part of the formal Building Construction Services Agreement between the Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to collectively in these General Conditions as the "Contract "). The Contract Documents represent the entire and integrated agreement between the Owner and the Contractor and supersede all prior negotiations, representations or agreements, either written or oral. The terms and conditions of the Contract Documents may be changed only by an Amendment. The Contract Documents shall not be construed to create a contractual relationship of any kind: (1) between the Architect/Engineer and Contractor; (2) between the Owner and a Subcontractor or Sub - subcontractor; or (3) between any persons or entities other than the Owner and Contractor. Contract 5963 EXHIBIT 4 The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect/Engineer's duties. c) THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor, or any Subcontractors, Sub - subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. d) THE PROJECT The Project is the total construction more particularly described in the Building Construction Services Agreement, of which the Work performed under the Contract Documents may be the whole or a part of the Project and which may include construction by the Owner or by separate contractors. All references in these General Conditions to or concerning the Work or the site of the Work will use the term "Project," notwithstanding that the Work may only be a part of the Project. e) THE DRAWINGS The Drawings (also known as the "Plans ") are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. f) THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, performance of related services, and other technical requirements. g) THE PROJECT MANUAL The Project Manual is the volume or volumes which contain the bidding requirements, sample forms, General Conditions for Building Construction, special provisions, and Specifications. The Project Manual may be modified by written addendums issued by the Owner during bidding, in which case the written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated by the Owner in writing. h) ALTERNATE An Alternate is a variation in the work on which the Owner requires a price separate from the City Building General Conditions Base Bid. If an Alternate is accepted by the Owner, the variation will become a part of the Contract through the execution of a change order or amendment to the Contract and the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner, and later deleted prior to any Work under the alternate being performed or materials delivered to the Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the Contractor's Bid. Contract 5963 EXHIBIT 4 i) BASE BID The Base Bid is the price quoted for the work before alternates are considered. j) HAZARDOUS SUBSTANCE The term Hazardous Substance is defined to include the following: (1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable; (2) any polychlorinated biphenyls ( "PCBs "), or PCB - containing materials, or fluids; (3) radon; (4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; (5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its condition, concentration or area of release could have a significant effect on human health, the environment, or natural resources; (6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I) (including those defined by Section 9001(l) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and (8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic substance as those or similar terms are defined under any federal, state, or local environmental laws, rules, or regulations. k) OTHER DEFINITIONS As used in the Contract Documents, the following additional terms have the following meanings: (1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials, appurtenances and other expenses to complete in place, ready for operation or use; (2) "shall" means the action of the party to which reference is being made is mandatory; Contract 5963 EXHIBIT 4 (3) "as required" means as prescribed in the Contract Documents; and (4) "as necessary" means all action essential or needed to complete the work in accordance with the Contract Documents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including but not limited to subsurface conditions, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. (d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. (e) Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. (f) The Drawings and Specifications are intended to agree with one another, and Work called for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both. Specifications shall govern materials, methods and quality of work. In the event of a conflict on the Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and large scale drawings shall govern over small scale drawings. Conflict between two or more dimensions applying to a common point shall be referred to the Architect/Engineer /Engineer for final adjustment. If discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work, or within or between other Contract Documents, the Contractor shall not perform such Work without having obtained a clarification from the Architect/Engineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or the Specifications disagree within themselves or with each other; the Base Bid will be based on the most expensive combination of quality and quantity of Work indicated. Contract 5963 EXHIBIT 4 (g) Deviations from Contract Documents shall be made only after written approval is obtained from Architect/Engineer and Owner, as provided in Article 7. (h) The intention of the Contract Documents is to include all materials, labor, tools, equipment, utilities, appliances, accessories, services, transportation, and supervision required to completely perform the fabrication, erection and execution of the Work in its final position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; (3) addenda, with those addenda of later date having precedence over those of an earlier date; (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifications and Drawings. 1.3 OWNERSHIP AND USE OF ARCHITECT /ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. 1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are: (1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.10), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses; (3) the titles of other documents published or used by the Owner as manuals or official policy statements; or (4) proper nouns or other words required under standard grammatical rules to be capitalized. ARTICLE 2 THE OWNER 2.1 DEFINITION OF OWNER The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in Contract 5963 EXHIBIT 4 the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representatives. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER (a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish any environmental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3.10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including redeliveries by the Owner to comply with the current schedule. (d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies of the Drawings and Specifications for bid purposes and one hard copy approved by Building Inspections upon execution of the Contract. Contractor may obtain additional copies by paying the cost of additional printing or reproduction. (e) The obligations described above are in addition to other duties and responsibilities of the Owner enumerated in the Contract Documents and especially those in respect to Article 6 (Construction by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11 (Insurance and Bonds). (f) The Owner shall forward all instructions to the Contractor through the Architect/Engineer, except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as described in Paragraph 2.4. (g) The Owner's employees, agents, and consultants may be present at the Project site during performance of the Work to assist the Architect/Engineer in the performance of the Architect/Engineer's duties and to verify the Contractor's record of the number of workmen employed on the Work, their occupational classification, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK Contract 5963 EXHIBIT 4 If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within fourteen (14) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional services and expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to verification (but not approval) by the Architect/Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner. 2.5 NOTICE TO PROCEED After final execution of the Contract and receipt and approval of the required performance and payment bonds and evidence of required insurance, the Owner will issue a written notice to proceed with the Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason. ARTICLE 3 THE CONTRACTOR 3.1 DEFINITION OF CONTRACTOR The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Contractor shall carefully check, study, and compare the Contract Documents with each other and shall at once report to the Architect/Engineer in writing any inconsistency, Contract 5963 EXHIBIT 4 ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Contractor will be held responsible for any subsequent error, omission, conflict, or discrepancy which might have been avoided by the above - described check, study, comparison, and reporting. In the event the Contractor continues to work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists without obtaining such clarification or resolution or commences an item of the Work without giving written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check, study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the Contract Documents, without any increase to the Contract Sum or Contract Time. The Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or Contract Time. (b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth specific instructions concerning these matters. (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub - subcontractors, and their respective agents and employees, and any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work required throughout shall be of a quality that will bring only first class results. Mechanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any Contract 5963 EXHIBIT 4 way eliminate the Architect/Engineer's responsibility to the Owner under the Architect/Engineer /Owner Agreement. (e) Any Contractor, Subcontractor, Sub - subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor, sub - subcontractor or separate contractor without the Contractor having given written notice to the Architect/Engineer of the existence of any faulty surface or condition in the surface that prevents achieving the quality of workmanship specified by the Contract Documents and without having obtained the prior approval of the Architect/Engineer and the Owner to proceed is deemed to have accepted the surface or condition in the surface as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre- approved by the Architect/Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time. (f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the Contractor. The Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Each Contractor for his own Work shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the Owner, establish and maintain adequate horizontal and vertical control. 3.4 LABOR AND MATERIALS (a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the Owner, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. (b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the employment relates, to all labor hired for the Project in the following order: (1) to bona fide residents of the City of Denton, Texas; (2) to bona fide residents of the County of Denton, Texas; (3) to bona fide residents of the State of Texas; Contract 5963 EXHIBIT 4 (4) to bona fide residents of the United States. 3.5 WARRANTY (a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good and workmanlike manner and that all materials and equipment furnished under the Contract will be of good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will otherwise conform to the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, will be considered defective or nonconforming. The Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The commencement date, duration, and other conditions related to the scope of this general warranty are established in Subparagraphs 9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE- EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF ONE (2) YEAR AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN TWO (2) YEARS AFTER DISCOVERY BY THE OWNER OF THE LATENT DEFECT. (b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under the Contract Documents. 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. 3.7 PERMITS, FEES AND NOTICES (a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits, and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department. Contract 5963 EXHIBIT 4 (b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of governmental entities or agencies applying to performance of the Work. (c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor shall promptly notify the Architect/Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or rules and regulations without notifying the Architect/Engineer and the Owner, the Contractor shall assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work and any other Work in place that may be adversely affected by the corrective work. 3.8 ALLOWANCES (a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for the amounts identified in the Contract and by persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities against which the Contractor makes reasonable objection. (b) Unless otherwise provided in the Contract Documents: (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment delivered at the site less all exempted taxes and applicable trade discounts; (3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance Work; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect: (i) the difference between actual costs and the allowances under Clause (b) (2); and (ii) changes in Contractor's costs under Clause (b) (3); (5) the Owner retains the right to review and approve Subcontractors selected by the Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT Contract 5963 EXHIBIT 4 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Contractor replace its superintendent at any time and the Contractor will replace said superintendent at the Owner's direction. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the construction schedule for the Architect/Engineer's and Owner's information, review, and approval in accordance with the following provisions: (1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall provide for expeditious and practicable execution of the Work. (2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Contractor; and (ii) the latest date for approval by the Architect/Engineer. (3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor ") of all the major construction activities of the Work in a logical and sequential order (the "project network ") which requires completion prior to commencement of the task next following (the "successor "). Each task shall be identified with: (i) actual work time, exclusive of slack time, for accomplishment; (ii) the latest start date; (iii) the latest finish date; (iv) the amount of float associated with each task; (v) the amount of labor, material, and equipment associated with each task; and (vi) the percentage of completion as of the date of the current schedule. (4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. (5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect/Engineer and the Owner an up -to -date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist of a time scale drawing indicating actual Contract 5963 EXHIBIT 4 progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect/Engineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the Architect/Engineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect/Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes and selections made during construction, and in addition shall maintain at Contract 5963 EXHIBIT 4 the Project site approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect/Engineer is subject to the limitations of Paragraph 4.2. (e) The Contractor shall review, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. (f) The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been approved by the Architect/Engineer. Work requiring this submittal and review shall be in accordance with approved submittals and any identified exceptions noted by the Architect/Engineer. (g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and related field construction criteria, or will do so, and has checked and coordinated the information contained within submittals with the requirements of the Work and of the Contract Documents. The Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions, deletions or omissions from requirements of the Contract Documents by the Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Architect/Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at the time of submittal and the Architect/Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's approval thereof. Further, notwithstanding any approval of a submittal by the Architect/Engineer, the Contractor shall be responsible for all associated Contract 5963 EXHIBIT 4 Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not specifically identified by the Contractor to the Architect/Engineer at the time of the above - mentioned submittals, including additional consulting fees, if any, in any and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to additional revisions other than those requested by the Architect/Engineer on previous submittals. In the absence of such written notice, the Architect/Engineer's approval of a resubmission shall not apply to the additional revisions not requested. (j) Informational submittals upon which the Architect/Engineer is not expected to take responsive action may be so identified in the Contract Documents. (k) When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 3.13 USE OF THE PROJECT SITE The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project site with materials or equipment. 3.14 CUTTING AND PATCHING (a) The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. (c) A Hot Work Permit must be obtained from the City of Denton's Facilities Management Department, 869 S. Woodrow Lane, Denton, Texas (940 349 -7200) for any temporary operation involving open flames or producing heat and /or sparks. This includes, but is not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. Contract 5963 EXHIBIT 4 (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect/Engineer access to the Work in preparation and progress wherever located during the course of construction. 3.17 TESTS AND INSPECTIONS (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity selected or contracted by the Owner or with the appropriate governmental entity or agency, and the Owner shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to be made so the Architect/Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received. (b) If the Architect/Engineer, the Owner or other public authorities having jurisdiction over the Work determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections are to be made so that the Architect/Engineer may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c). (c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of repeated procedures and compensation for the Architect/Engineer's services and expenses, if any. The Contractor shall bear the costs of any subsequent testing, inspection, or approval of the corrected Work. (d) Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect/Engineer. (e) If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of testing or inspection. (f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 3.18 ROYALTIES AND PATENTS Contract 5963 EXHIBIT 4 The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT /ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT THE OWNER OR THE ARCHITECT /ENGINEER SPECIFIED A PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Contractor shall immediately notify the Owner and the Architect/Engineer of same. 3.19 INDEMNIFICATION (a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT /ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB - SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE ARCHITECT /ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT /ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by Contract 5963 EXHIBIT 4 them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety and health of workers. The Contractor specifically agrees to comply with the above - mentioned laws and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect/Engineer under the above - mentioned laws and regulations are secondary to those of the Contractor. ARTICLE 4 CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT /ENGINEER) (a) The design professional is the person lawfully licensed to practice architecture or engineering or a firm or other business entity lawfully practicing architecture /engineering identified as such in the formal Building Construction Services Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect/Engineer" means the Architect/Engineer or the Architect/Engineer's authorized representative. The Owner may, at its option, designate a qualified Owner representative to serve as the Architect /Engineer on the Project instead of an outside firm or person. In such event, the references in these General Conditions that refer to the Architect/Engineer shall apply to the Owner - designated Architect/Engineer representative and the Owner - designated Architect/Engineer representative shall be accorded that same status by the Contractor. (b) In the event the Architect/Engineer is an outside person or firm and the Architect/Engineer's employment is terminated, the Owner may, at its option, contract with a new outside Architect/Engineer to replace the former, or may designate a qualified Owner representative to serve as the Architect/Engineer. The replacement Architect/Engineer, whether an Owner representative, an independent Architect/Engineer or any other qualified person or entity, shall be regarded as the Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled by the Owner, whose decision shall be final and binding. (c) Owner reserves the right to appoint a representative empowered to act for the Owner during the Construction Phase and to supersede the Architect/Engineer's Construction Phase responsibility. Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the Architect/Engineer, with the Owner notifying the Contractor of any such changes. The Architect/Engineer shall not be construed as a third party beneficiary to the Contract and can in no way object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have control over charge of, or be responsible for, construction means, methods, Contract 5963 EXHIBIT 4 techniques, sequences, or procedures, or for safety precautions or programs in connection with the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.2 ARCHITECT /ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION (a) The Architect/Engineer will administer the Contract as described in the Contract Documents and in accordance with the terms of the Architect/Engineer's agreement with the Owner, where applicable, subject to the direction and approval of the Owner. If requested by the Contractor, the provisions of the Owner /Architect/Engineer Agreement will be made available to the Contractor. (b) The Architect/Engineer shall provide, during performance of the Work, adequate and competent periodic on -site construction observation, periodically visiting the Project site to the extent necessary to personally familiarize themselves with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. The Architect/Engineer shall not, however, be required to make continuous on -site inspections to check the Work. Field reports of each visit shall be prepared by the Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the Work. The Architect/Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect/Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect/Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub - subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Architect/Engineer. Communications by and with the Architect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made directly with the Owner and provide copies of such confirmation to the Architect/Engineer. Contract 5963 EXHIBIT 4 (e) Based on the Architect/Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect/Engineer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. (f) The Architect/Engineer and the Owner will each have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect/Engineer will have authority to require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect/Engineer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of the Architect/Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. (g) The Architect/Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect/Engineer's action will be taken with such reasonable promptness as to not delay the Work or the activities of the Owner, Contractor, or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect/Engineer's review of the Contractor's submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated in writing by the Architect/Engineer, of any construction means, methods, techniques, sequences, or procedures. The Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3. (i) The Architect/Engineer will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. (j) If the Owner and Architect/Engineer agree, the Architect/Engineer will provide one or more Project representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties, responsibilities, and limitations of authority of such Project representatives shall be as set forth in an exhibit to be incorporated into the Contract Documents. Contract 5963 EXHIBIT 4 (k) The Architect/Engineer will interpret and make recommendations to the Owner concerning performance under and requirements of the Contract Documents upon written request of either the Owner or Contractor. The Architect/Engineer's response to such requests will be made with reasonable promptness and within any time limits agreed upon. The Architect/Engineer shall secure the Owner's written approval before issuing instructions, interpretations, or judgments to the Contractor which change the scope of the Work or which modify or change the terms and conditions of any of the Contract Documents. (1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect/Engineer will endeavor to secure faithful performance by the Contractor. (m)The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents provided that the Architect/Engineer has prior written approval of the Owner. 4.3 CLAIMS AND DISPUTES (a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a "Claim" means a demand or assertion by one of the parties to the Contract seeking an adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the scope of the Contract Documents. The responsibility to substantiate the Claim and the burden of demonstrating compliance with this provision shall rest with the party making the Claim. Except where otherwise provided in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT /ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, shall be signed and sworn to by an authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the Contract Documents shall be referred to the Architect/Engineer for recommendation to the Owner, which recommendation the Architect/Engineer will furnish in writing within a reasonable time, provided proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim Contract 5963 EXHIBIT 4 to the Architect/Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the Claim. (c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and (5) the Owner and the Architect/Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT /ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT /ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS. (f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect/Engineer a sufficient amount of time, without Contract 5963 EXHIBIT 4 adversely affecting the construction schedule, to review the request, prepare and distribute such additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a Change Order for the required work if the Contractor believes that additional cost is involved for reasons including but not limited to: (1) a written interpretation from the Architect/Engineer; (2) a written order for a minor change in the Work issued by the Architect/Engineer; (3) failure of payment by the Owner; (4) termination of the Contract by the Owner; (5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or property because of an act or omission of the Owner, or of any of the Owner's officers, employees or agents, written, sworn -to notice of any claim for damages or injury shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail to enable the Architect/Engineer and the Owner to investigate the matter. (h) Subcontractor Pass - Through Claims. In the event that any Subcontractor of the Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be subject to: (1) the requirements of Paragraph 4.3 of these General Conditions; and (2) the following additional three requirements listed below, all three of which additional requirements shall be conditions precedent to the entitlement of the Contractor to seek and assert such claim against the Owner: (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identified in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its Contract 5963 EXHIBIT 4 submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by the Subcontractor shall be included by Contractor in the claim submittal materials. (3) Any failure of the Contractor to comply with any of the foregoing requirements and conditions precedent with regard to any such claim shall constitute a waiver of any entitlement to submit or pursue such claim. (4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial Completion of the Work by or before the Scheduled Completion Date is of substantial importance to Owner. The following provisions, therefore, will apply: (1) If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Contractor to develop a recovery schedule as described in Paragraph 3.10 or to accelerate its progress in such a manner as to achieve Substantial Completion on or before the Contract Time completion date or such other date as the Owner may reasonably direct and, upon receipt, the Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Contractor is otherwise entitled to an extension of Contract Time and has properly initiated a Claim for a time extension in accordance with Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner's sole discretion, to deny all, or any part, of the Claim for extension of Contract Time by giving written notice to the Contractor provided within fourteen (14) days after receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date. (3) If the Contractor would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by the Owner if not for the need and right to Contract 5963 EXHIBIT 4 accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to Subparagraph 4.3(a). Any resulting Claim for acceleration costs properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by the Contractor and approved in writing by the Owner. A percentage markup for the prorated cost of premium on the existing performance and payment bonds and required insurance, not to exceed 5 %, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from: (1) claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled; (2) defective or nonconforming Work appearing after Substantial Completion; (3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or (4) the terms of general and special warranties required by the Contract Documents or allowed or implied by law. (k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING. (1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER'S GOVERNMENTAL IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE LAW. ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR (a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease for use in performance of or incorporation into the Contract 5963 EXHIBIT 4 Work. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. (b) A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Subcontractor or another Sub - subcontractor by purchase or lease for use in performance of or incorporation into the Work. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK (a) Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the Architect/Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers, M/WBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect/Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect/Engineer has made reasonable and timely objection. (c) Architect/Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect/Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect/Engineer makes reasonable objection to such change. 5.3 SUBCONTRACTUAL RELATIONS (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Contract 5963 EXHIBIT 4 Documents, assumes toward the Owner and the Architect/Engineer. Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect/Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions of such Documents available to their respective proposed Sub - subcontractors. (b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report ") with each Application and Certificate for Payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment received or other information furnished to the Owner that: (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCHITECT /ENGINEER'S ENFORCEMENT OF THIS Contract 5963 EXHIBIT 4 SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT /ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals and copies of the subcontract documents. In the event assignment is not requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same and to the extent that they relate to the performance of Work terminated by the notice of termination. ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS (a) The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Project site under Conditions of the Contract identical or substantially similar to these General Conditions, including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with the Contract Documents. (b) When separate contracts are awarded for different portions of the Project or other construction or operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Building Construction Services Agreement with the Owner. (c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's Change Contract 5963 EXHIBIT 4 Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. (d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under these General Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY (a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and storage of their materials and equipment and the performance of their activities and shall coordinate the Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in the other construction that would render it unsuitable for proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault or negligence of a separate contractor or through failure of a separate contractor to carry out the directions of the Owner or the Architect/Engineer. Should any interference occur between the Contractor and a separate contractor, the Architect/Engineer or the Owner may furnish the Contractor with written instructions designating priority of effort or change in methods, whereupon the Contractor shall immediately comply with such direction. In such event, the Contractor shall be entitled to an extension of the Contract Time only for unavoidable delays verified by the Architect/Engineer; no increase in the Contract Sum, however, shall be due to the Contractor. (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred. Contract 5963 EXHIBIT 4 (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the Project site and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as the Architect/Engineer recommends to be just. ARTICLE 7 AMENDMENTS 7.1 CHANGE ORDERS (a) A Change Order is a written order to the Contractor, signed by the Owner and the Architect/Engineer, issued after execution of the Contract, authorizing a change in the Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent with other applicable provisions of this Contract. The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties, may order changes to the scope of Work under the Contract by additions, deletions, or other revisions, the Contract Sum and Contract Time to be adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the Owner's City Attorney. (b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however, should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect/Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The Contractor forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative impact of all Change Orders and to any claim related to the effect of a change on other Work. (c) No extra work (except under emergency conditions) or changes shall be made nor shall any substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings and Specifications be made unless pursuant to a written Change Order signed by the Owner and the Architect/Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra work or any substitution, change, addition, omission or deviation from the requirements of the Drawings or Specifications unless the same shall have been authorized in writing by the Contract 5963 EXHIBIT 4 Owner and the Architect/Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders under emergency conditions. (d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following: (1) mutual acceptance of a not -to- exceed lump sum amount properly itemized and supported by sufficient substantiating data to permit evaluation; (2) unit prices stated in the Contract Documents or subsequently agreed upon; (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the force account method provided in Subparagraph 7.1(e) (e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15 %. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect/Engineer each day during the performance of force account work, with copies to the Owner. FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; (2) costs of materials, supplies and equipment (but not to include off -site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and Contract 5963 EXHIBIT 4 (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect/Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect/Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. 7.4 TIME REQUIRED TO PROCESS AMENDMENTS (a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in advance of the required work to allow the Owner and the Architect/Engineer a minimum of thirty (30) calendar days after receipt by the Architect/Engineer to review the itemized breakdown and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other grounds for seeking Contract 5963 EXHIBIT 4 extra compensation under the Contract Documents, without reservation or further recourse. (b) All Amendments require approval by either the City Council or, where authorized by the state law and City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a minimum of forty -five (45) calendar days after submission to the Owner in final form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with the work under a pending Amendment only if directed in writing by the Owner. ARTICLE 8 CONTRACT TIME 8.1 DEFINITIONS (a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. (b) The date of commencement of the Work is the date established in the notice to proceed from the Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of persons or entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. (c) The date of Substantial Completion is the date certified by the Architect/Engineer in accordance with Paragraph 9.7. (d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at 12:00 midnight, unless otherwise specifically defined by special provision. 8.2 PROGRESS AND COMPLETION (a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Building Construction Services Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing, prematurely commence operations on the Project site or elsewhere prior to the effective date of insurance to be furnished by the Contractor as required by Article 11. The date of commencement of the Work shall not be changed by the effective date of insurance required by Article 11. Contract 5963 EXHIBIT 4 (c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the Building Construction Services Agreement, or in any proper extension of the Contract Time granted by the Owner, then the Contractor agrees, as a part of the consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated damages (hereinafter called the "Stipulated Amount ") as stipulated in the Bid Proposal form and the Building Construction Services Agreement for each calendar day that the Contractor has not Substantially Completed the Work after the expiration of the Contract Time provided. The Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain. The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient to recover the Stipulated Amount, then the Contractor or the Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in excess of the funds remaining unpaid in the Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially Completed within the calendar days allotted, which shall include the original Contract Time and any proper extension of the Contract Time granted in writing by the Owner. Should the Contractor dispute the Owner's determination of liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns, institute any legal action against the Owner to enforce rights under the Contract Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking full recovery for any and all actual damages suffered by the Owner and attributable to the Contractor, as an alternative to all liquidated damages due. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect/Engineer and Owner may determine. (b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3. (c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR Contract 5963 EXHIBIT 4 INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE OWNER, THE ARCHITECT/ENGINEER, OR THE OWNER'S REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TIME UNDER SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY. (d) The Owner shall have the right to occupy, without prejudice to the right of either party, any completed or largely completed portions of the structure or Work, notwithstanding the fact that the Contract Time for completing all or a portion of the Work may not have expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken or used. (e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being suspended by a court order. (f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect/Engineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the part of the Contractor to correct conditions considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent damage or deterioration of the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor shall not suspend the Work in whole or in part without written authority from the Architect/Engineer or the Owner, and shall resume the Work promptly when notified by the Architect/Engineer or the Owner to resume operations. (g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect/Engineer, Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i). THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY. ARTICLE 9 PAYMENTS AND COMPLETION Contract 5963 EXHIBIT 4 9.1 CONTRACT SUM The Contract Sum is stated in the Building Construction Services Agreement and, including authorized adjustments, is the total amount of compensation payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Contractor shall submit to the Architect/Engineer a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer may require. This schedule, when approved by the Architect/Engineer and the Owner, shall be used as a basis for the Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment), as approved by the Owner. 9.3 APPLICATIONS FOR PAYMENT (a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect/Engineer an itemized Application for Payment for Work completed in accordance with the schedule of values. The Application shall be notarized, if required, and supported by data substantiating the Contractor's right to payment as the Owner or Architect/Engineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off -site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off -site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR Contract 5963 EXHIBIT 4 PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. (e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an "early delivery." All early delivery materials or equipment must have the express written permission of the Owner to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off -site until required at the Project site. All costs of labor, transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved for payment as stored materials prior to thirty (30) days before the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in writing by the Owner. (f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the Architect/Engineer's reasons for withholding certification in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certificate for Payment will constitute a representation by the Architect/Engineer to the Owner, based on the Architect/Engineer's observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect/Engineer's knowledge, information and belief, quality of the Work is in accordance with the Contract Contract 5963 EXHIBIT 4 Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to Final Completion and to specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate for Payment is not a representation that the Architect/Engineer has: (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect/Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) The City is required to withhold retainage for public works contracts in which the total contract price estimate at the time of execution is more than $400,000; however, this requirement is applied by the City for all public works contracts in excess of $50,000. The City may require varying percentage withholding amounts; however, the City requires five percent. The retainage will be withheld by the Owner from each progress payment until final completion of the Work by the Contractor, approval of final completion by the Architect/Engineer, and final acceptance of the Work by the Owner. Unless otherwise required by state law, the retainage percentage as specified above is based upon the original Contract Sum, and will not be affected in the event the original Contract Sum is subsequently increased or decreased by Change Order. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect/Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect/Engineer's or Owner's opinion the Contract 5963 EXHIBIT 4 representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect/Engineer or the Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and Architect/Engineer or the Owner cannot agree on a revised amount, the Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the Architect/Engineer is able to make the required representations to the Owner. The Architect/Engineer or the Owner may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary, in the Architect/Engineer's or Owner's opinion, to protect the Owner from loss because of- (1) defective or nonconforming Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; (7) persistent failure to carry out the Work in accordance with the Contract Documents; or (8) mathematical or other errors that are discovered in the Application for Payment. (b) When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payment or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect/Engineer. The Owner shall not be liable for interest on any late or delayed progress payment or final payment caused by any claim or dispute, any Contract 5963 EXHIBIT 4 discrepancy in quantities, any failure to provide supporting documentation or other information required with the Application for Payment or as a precondition to payment under the Contract Documents, or due to any payment the Owner or the Architect/Engineer has a right to withhold or not certify under the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including, without limitation, the final Certificate for Payment) for any default under the Contract Documents, including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Contractor default remains uncured. (b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in similar manner. (c) The Architect/Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect/Engineer and the Owner on account of portions of the Work done by such Subcontractor. (d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3. (e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d). (f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certified by the Architect/Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Architect/Engineer a comprehensive list of remaining items to Contract 5963 EXHIBIT 4 be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list "). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect/Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substantially Complete. If the Architect/Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the Contract Documents and which renders the Work inspected not Substantially Complete the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct the item upon notification by the Architect/Engineer. The Contractor shall then submit a request for another inspection by the Architect/Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect/Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect/Engineer, the Owner shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. Contract 5963 EXHIBIT 4 (c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.9 FINAL COMPLETION AND FINAL PAYMENT (a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect/Engineer, accompanied by the Owner's representative, will promptly make final inspection and, when the Architect/Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the Architect/Engineer will promptly issue a final Certificate for Payment stating that to the best of the Architect/Engineer's knowledge, information and belief, and on the basis of the Architect/Engineer's observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect/Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final payment within thirty (30) days after Owner's receipt and approval of the final Certificate for Payment. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect/Engineer: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) a consent of surety to final payment; and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. (c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to him for the Work under this Contract. In the event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit Contract 5963 EXHIBIT 4 the amount owed and the name of each subcontractor, laborer or materialmen to whom such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. (d) If, after Substantial Completion of the Work, final completion of the Work is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion and the Architect/Engineer confirms the delay, the Owner shall, upon application by the Contractor and certification by the Architect/Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect/Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. Contract 5963 EXHIBIT 4 (b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. (e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre- approve the use of any explosives on the Project; the Contractor shall not assume in its bid that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT /ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect/Engineer with evidence of insurance sufficient to cover possible damage or injury, which insurance shall either include the Owner and the Architect/Engineer as additional insureds or be sufficiently broad in coverage as to fully protect the Owner and the Architect/Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places shall be marked clearly "DANGEROUS - EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton Fire Department regulations. The Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity of the Project Site of the Contractor's intention to use explosives, and such notice shall be given sufficiently in advance to enable the telecommunications and public utility companies and private property owners to take such steps as they may deem necessary to protect their property from injury. The notice Contract 5963 EXHIBIT 4 shall not relieve the Contractor of any responsibility for damage resulting from any blasting operations. (f) The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions of the Owner or Architect/Engineer or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by property insurance or other insurance required by the Contract Documents, the Owner and the Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for such damage or loss. (g) The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer. (h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety. 10.3 EMERGENCIES In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Contractor shall place materials stored about the Work and shall conduct the Work at all times in a manner that causes no greater obstruction to the public than is considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special permission of the Owner. The materials excavated and the construction materials or plant used in the performance of the Work shall be placed in a manner that does not endanger the Work or prevent free access to all fire hydrants, water mains and appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity. (b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to public convenience and safety which may come to the Owner's attention, after twenty -four (24) hours notice in writing to the Contractor. In case of an emergency, the Contract 5963 EXHIBIT 4 Owner shall have the right to immediately remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case of major thoroughfares or street upon which transit lines operate, be forty -eight (48) hours in advance. The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor shall, when directed by the Architect/Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor's responsibility for accidents shall include the roadway approaches as well as the crossing structures. 10.5 BARRICADES, LIGHTS AND WATCHMEN If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect/Engineer may order the damaged portion immediately removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted by the Owner. 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect/Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS Contract 5963 EXHIBIT 4 When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical connections with the Owner or with Denton Municipal Electric in the event that separately metered electrical connections are required for the Project. The Contractor shall pay for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly authorized to do so by the Denton Water Utilities Department in accordance with the Denton City Code. 10.10 ENVIRONMENTAL COMPLIANCE (a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable federal, state or local laws, rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ Contract 5963 EXHIBIT 4 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. (b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter to the Architect/Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors, the Contractor shall be responsible for remediatiog the condition at the sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner and the Architect/Engineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. (d) Spill Prevention Plan. At least seventy -two (72) hours prior to commencing performance of any of the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and regulations. The SPRP shall be specially designed for the Contractor's planned work methods and procedures. The SPRP shall be designed to complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or Contract 5963 EXHIBIT 4 migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty -four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. (f) The Contractor shall deposit surplus or waste excavation or other materials removed as part of the Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to removal of any excavation or other material from the Project site. A copy of all transport manifests for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request to the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. Contract 5963 EXHIBIT 4 (g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to the Clean Water Act, 33 U.S.C.A. § §1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos - related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable. (i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days advance written notice from the Owner to comply with the provisions of this Paragraph 10.10, the terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other environmental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: (1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed plan to achieve compliance within a reasonably prompt period of time is prepared by the Contractor and approved by the Owner; (2) if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor for the cost of the remediation or correction; or (3) terminate the Contract for cause as provided in Article 13. ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.2 PROPERTY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in Contract 5963 EXHIBIT 4 the actual contract shall prevail. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -of- Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: (1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and faithful execution of the Work and performance of the Contract in accordance with Plans, Specifications and all other Contract Documents, including any Amendments thereof, for the protection of the Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner - accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Contract 5963 EXHIBIT 4 Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. (d) The person or persons, partnership, company, firm, Limited Liability Company, association, corporation, or other business entity to whom the Contract is awarded shall, within ten (10) days after such award, sign the required Contract with the Owner and provide the necessary surety bonds and evidence of insurance as required under the Contract Documents. No Contract shall be binding on the Owner until it has been approved as to form by the City Attorney, executed for the Owner by the City Manager, the performance and payment bonds and evidence of insurance have been furnished as required by the Contract Documents, and the fully executed contract has been delivered to the Contractor. (e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or as soon thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid proposal and the Owner may rescind the Contract award and collect or retain the proceeds of the bid security. By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re- advertise for bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re- advertisement shall be the bid referred to in this Paragraph. ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK 12.1 UNCOVERING OF WORK Contract 5963 EXHIBIT 4 (a) If a portion of the Work is covered contrary to the Architect/Engineer's request or to requirements specifically expressed in the Contract Documents, the Work must, if required in writing by the Architect/Engineer, be uncovered for the Architect/Engineer's observation and be replaced at the Contractor's expense without change in the Contract Time. (b) If a portion of the Work has been covered which the Architect/Engineer has not specifically requested to observe prior to it being covered, the Architect/Engineer may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK (a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect/Engineer's services and expenses made necessary thereby. (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Architect/Engineer or the Owner to do so unless the Owner has previously given the Contractor a written acceptance or waiver of the defect or nonconformity. The Contractor's obligation to correct defective or nonconforming Work remains in effect for: (1) two years after the date of Substantial Completion of the Work or designated portion of the Work; (2) two years after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.8(a); or (3) the stipulated duration of any applicable special warranty required by the Contract Documents. (c) The one -year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions of the Work performed, repaired, or corrected after Substantial Completion by the period of time between Substantial Completion and the actual completion of the Work. (d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work and termination of this Contract. The Owner shall give notice to the Contractor promptly after discovery of a defective or nonconforming condition in Contract 5963 EXHIBIT 4 the Work. The one -year period stated in Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct latent defects or nonconformities in the Work, which defects or nonconformities could not have been discovered through reasonable diligence by the Owner or the Architect/Engineer at the time the Work was performed or at the time of inspection for certification of Substantial Completion or Final Completion. The two year period also does not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the two year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. (f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the Architect/Engineer, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work within a reasonable time fixed by written notice from the Architect/Engineer, the Owner may remove or replace the defective or nonconforming Work and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and equipment at auction or at private sale and shall account for the proceeds after deducting costs and damages that should have been borne by the Contractor, including compensation for the Architect/Engineer's services and expenses made necessary as a result of the sale. If the proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the deficiency, the Contractor shall pay the difference to the Owner. (g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or separate contractors, whether the construction is completed or partially completed, that is caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. (i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article 12 to the same extent as Work originally performed or installed. 12.3 ACCEPTANCE OF NONCONFORMING WORK The Owner may, in the Owner's sole discretion, accept Work which is not in accordance Contract 5963 EXHIBIT 4 with the requirements of the Contract Documents instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether or not final payment has been made. ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION 13.1 FINAL COMPLETION OF CONTRACT The Contract will be considered completed, except as provided in any warranty or maintenance stipulations, bond, or by law, when all the Work has been finally completed, the final inspection is made by the Architect/Engineer, and final acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to the expiration of the specified warranty period provided for in the Contract Documents, the Architect/Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect/Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect/Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (2) A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Contractor has abandoned the Work. (5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work. (6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract Documents or to comply with any written orders given by the Architect/Engineer or the Owner as provided for in the Contract Documents. Contract 5963 EXHIBIT 4 (7) Failure or refusal of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature, the correction of which has been directed in writing by the Architect/Engineer. (8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on the Owner in connection with the construction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within fifteen (15) days after the written notice of termination for cause has been served upon the Contractor and the surety or its authorized agents, assume the obligations of the Contractor for the Work or that portion of the Work which the Owner has ordered the Contractor to discontinue and may: (1) perform the Work with forces employed by the surety; (2) with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or (3) with the written consent of the Owner, tender and pay to the Owner in settlement the amount of money necessary to finish the balance of uncompleted Work under the Contract, correct existing defective or nonconforming Work, and compensate the Owner for any other loss sustained as a result of Contractor's default. In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Contractor's place in all respects, and the amount of funds remaining unpaid under the Contract shall be paid by the Owner for all Work performed by the surety or the replacement contractor in accordance with the terms of the Contract Documents, subject to any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the termination shall become due and payable to the surety as the Work progresses, subject to all of the terms, covenants, and conditions of the Contract Documents. If the Contract 5963 EXHIBIT 4 surety does not, within the time specified in Subparagraph 13.3(b), exercise its obligation to assume the obligations of the Contract, or that portion of the Contract which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Contractor agrees that the Owner shall have the right to take possession of or use any or all of the materials, plant, tools, equipment, supplies, and property of every kind provided by the Contractor for the purpose of the Work, and to procure other tools, equipment, labor, and materials for the completion of the Work, and to charge to the account of the Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred by the Owner to complete the Work shall be deducted by the Owner out of the balance of the Contract Sum remaining unpaid to or unearned by the Contractor. The Contractor and the surety shall be liable to the Owner for any costs incurred in excess of the balance of the Contract Sum for the completion and correction of the Work, and for any other costs, damages, expenses (including but not limited to additional fees of the Architect/Engineer and attorney's fees), and liquidated or actual damages incurred as a result of the termination. (d) The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 133(c), but the expenses to be deducted from the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner. (e) The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination for convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for convenience to the Contractor. Upon the Contractor's receipt of such written notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Contractor shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the Contractor for lost or anticipated profits. Contract 5963 EXHIBIT 4 13.4 TEMPORARY SUSPENSION OF THE WORK (a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon written notice to the Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or (4) other unforeseen conditions or circumstances. (b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Documents in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly made by the Contractor under Subparagraph 4.3 of these General Conditions: (1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the temporary suspension as determined by the Architect/Engineer and the Owner; (2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable costs of properly protecting any Work that is finished or partially finished during the period of the temporary suspension (no profit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the Project site and then return it to the Project site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment shall be due if the equipment is moved to another Project site of the Owner. ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS Contract 5963 EXHIBIT 4 (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain legally responsible for all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 14.3 WRITTEN NOTICE Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Contract 5963 EXHIBIT 4 Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner shall render the Contract involved voidable by the Owner's City Manager or City Council. 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees. 14.9 NONDISCRIMINATION As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. The Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. § §12101- 12213, as amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 14.10 GIFTS TO PUBLIC SERVANTS Contract 5963 EXHIBIT 4 (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State or Federal law, and obtain reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a minimum of five (5) years following completion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable hours. City may review any and all of the services performed by Contractor under this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise 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 5963 EXHIBIT 4 EXHIBIT E INSURANCE REQUIREMENTS AND WORKERS' COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. • Any deductibles or self - insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. Contract 5963 EXHIBIT 4 Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. 0 Coverage B shall include personal injury. 0 Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Contract 5963 EXHIBIT 4 • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. Contract 5963 EXHIBIT 4 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [X] 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 11100 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 5963 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: 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 Contract 5963 EXHIBIT 4 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. L The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on Contract 5963 EXHIBIT 4 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 5963 EXHIBIT 4 EXHIBIT F 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 12urchasingLcityofdenton.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 5963 Contract 5963 Exhibit G EXHIBIT 4 RFP 5963 Construction of Substation Precast Security Fences For the City of Denton From: Walsh's Hawk Construction Co. LLC 5002 Highway 380 Princeton, TX 75407 John Walsh 972 - 547 -6652 office 972 - 542 -0201 fax ..:... .... .. ...rc,sm,c.. J o.h n. .. w :.I .r ,c ,st, go m. Contract 5963 Exhibit G EXHIBIT 4 RFP #5963 PRICING SHEET FOR DME SUBSTATION PRE -CAST SECURITY FENCE CONSTRUCTION SERVICES Item # Construction Unit Estimated Quantity Unit of Measure Unit Price 1 10' Security /screening wall material, pier design, and complete construction including stockpiling, cleanup, regrading and compacting (assume 18" x 14' pier) 27,500 LF $ 199.50 2 Mow strip construction (includes drainage notches) 27,500 LF $ 12.00 Units that will apply as needed to adjust for geotechnical conditions and for drainage: 3 Increase 18" diameter pier depth 3,500 LF $ 10.00 4 Decrease 18" diameter pier depth 500 LF $ 10.00 5 Increase in price for 24" diameter pier 1 EA $ 375.00 6 Increase 24" diameter pier depth 1 LF $ 38.00 7 Decrease 24" diameter pier depth 1 LF $ 38.00 8 Rock drilling / excavation 1 CF $ 210.00 9 Payment and Performance Bonds for Project (per $100k) 1 EA $ 5,000.00 SECTION III - Delivery Timeframe 10 Estimated time between notice to proceed for a project until work begins (calendar days) 7 11 Normal time to complete a typical 2100 linear foot project (calendar days) 35 SECTION IV - Expedited Payment Discounts Payment Terms Additional Discount % Invoice Paid in 15 days 0% Page 1 of 1 Contract 5963 Exhibit G J?d 4 1 y OR 1 enTon RFP for Construction of Substation Precast Security Fences ,*,MRkNjMA-BUSINESS OVERVIEW QUESTIONNAIRE AN:V, FORMS 1. Contract Information (for formal contracting purposes): The following information will be used to write a contract, should your, be selected for award * Firm's Legal Name: Walsh's 1: aw Construction Co. LPL. C • Address: 5002 lfighwa.y 380 Princeton:,TX 75407 • Agent Authorized to sign contract (Name): John Walsh Agent's email address: Johii(tli,)liawl<l�)recist.coiii 2. Subsidiary of n/a 3. Organization Class (circle): Partnership ('01•poration Individual Association 4. Tax Payer fD#: 421 601(190 5. Date Established: July 31, 2003 6. Historically Underutilized Business: No 7. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes 8. Please provide a detailed listing of all products and/or services that your company provides. I. Screen "'a] is 2 Sotind Barrier Walls 3. SCCUrity Fences 4. Pre-Cast Concrete Retalmng Wall 131ocks 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 wider 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, (Notice: Failure to disclose this information during proposal submission, and later discovered, may result in contract termination at the Owner's option.) Yes, I lawk Construction fled suet ire 2015 agai nst as General Contractor for fad ure to pay, after work by 1--lawk Cc: onstructi on was completed. Ongoing negotiations with partial payment recei\,ed. RFP 5963 - Main Document Page 12 of 23 Contract 5963 Exhibit G &YXMATn 4 RFP for Construction of Substation Precast Security Fences 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 def,aulled contracts 1 LHave you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). No terminated contra(.A.s 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? http://www,osha.gov/pls/oshaweb/owasrch.search form?p oc_V =STANDARDS&p o level ype c_ =1 &p_keyvalue=1926 M 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: 5002 Ilwy 380 Princeton, TX 75,407 b. Company's majority owner principle place of business: 5002 Mv�) 380 [Irince'lon, l" 754.0 c. Ultimate Parent Company's principle place of business: 5002 Ilwy 380 PrInceton,TX75407 RFP 5963 - Main Document Page 13 of 23 Contract 5963 Exhibit G JAMAIXO RFP for Construction of Substation Precast Security Fences 1.4. Provide details to support the evaluation criteria, including experience and delivery. Hawk Construction has provided engineered pre-cast screen/sound wall niaterials and installation services to N/lunicipalities, Utilities"IN-DOT, CI orporate and Private Developments for over 12 years. 15.Provide details on how firm meets the minimum (jualifications 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. 1: Over 12 years of experience 2: Municipal References: 817-230-8811 Town of Flower Mound, Aimee Hanei, Landmark Services City of Grand Prairie, Ixe Harris, Special District Manager 972-237-8091 City of North Richland Hills, Joe Pack, Sr. Park Planner 817-427.-6622 3: HAWK CONSTRUICTION is registered with the City Of Denton. 4: HAWK CONSTRUCTION is an Authorized niaiitifaettirei-/distril)tit(kr for, Verti-Crete. I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3. "Signature Company Date RFP 5963 - Main Document Page 14 of 23 Contract 5963 Exhibit G EXPAA I T City o enton 4 RFP for Construction of Substation Precast Security Fences 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. L "o the ("n'�ent wllowid o,at,.:r 1� dull m p, el dhill ny demo t('I'Hn� Mld ca, , ' `( Hle'�c iHVICI,IJU(k'd t)OM OM hb"l `6 v"' i!l adchnonjll bw od on thm, of (he rr'(!Mfk'd St' HIP' GKAIM"" 3, U,�ie's to he fflr't�'IHed b", I u'nl wrw n(;L« to m lemo" cd h 4 F)NAF w ar d e,qwti,c, an un(lurgn,(d nd ufihkes?' XX XX X, X X X X XX Xt, XXXXI X' XXXX XXX X 'I he hnwm1Q4u' n)ust N", induw`Yed in Hw Hkmd f6rm fur the L'k"nd tcz �`)c \and and o" VhC SUIVfV'' iNhiht\ kY �wr and rdl 'o e elf friYditi: °, ap{`'t.�'ta rs urn tn9cw4 undcr sha C:'oend f"'m rv'¢',us kmn Ole da"t", of i'wan cornpk,n .,n lf\Valsh Hav'k t on'�mw6on A"k"H(h'd this pto'jec (it'id'�, A }h +.. V, Gn;` '€+eori „ %t:? P,Otrke °E ""'nncnd the morc, ihan vdhn'" tc, vvmk 6%ilh the Ua:„ (,,)fF M6k1Ct ids iMl"Cld""C of a Ie'nu\�"d 'cd I E,r;"O 0�ihOHS 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. ky-n 0 /'S” VSignature Company Date No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature Company Date RFP 5963 - Main Document Page 15 of 23 Contract 5963 Exhibit G EXHIBIT 4 City of Denton RFP for Construction of Substation Precast Security Fences The City of Denton desires to avail itself of the benefits of Section 252.0435 of the Local Government Code, and consider the safety records of potential contractors prior to award of City contracts. Pursuant to Section 252.0435 of the Local Government Code, the City of Denton has adopted the following written definition and criteria for accurately determining the safety record of a respondent prior to awarding City contracts. The definition and criteria for determining the safety record of a respondent for this consideration shall be: The City of Denton shall consider the safety record of the respondent in determining the responsibility thereof. The City may consider any incidence involving worker safety or safety of the citizens of the City of Denton, be it related or caused by environmental, mechanical, operational, supervision or any other cause or factor. Specifically, the City may consider, among other things: a. Complaints to, or final orders entered by, the Occupational Safety and Health Review Commission (OSHRC), against the respondent for violations of OSHA regulations within the past three (3) years. b. Citations (as defined below) from an Environmental Protection Agency (as defined below) for violations within the past five (5) years. Environmental Protection Agencies include, but are not necessarily limited to, the U.S. Army Corps of Engineers (USACOE), the U.S. Fish and Wildlife Service (USFWS), the Environmental Protection Agency (EPA), the Texas Commission on Environmental Quality (TCEQ), the Texas Natural Resource Conservation Commission (TNRCC) (predecessor to the TCEQ), the Texas Department of Health (TDH), the Texas Parks and Wildlife Department (TPWD), the Structural Pest Control Board (SPCB), agencies of local governments responsible for enforcing environmental protection or worker safety related laws or regulations, and similar regulatory agencies of other states of the United States. Citations include notices of violation, notices of enforcement, suspension/revocations of state or federal licenses or registrations, fines assessed, pending criminal complaints, indictments, or convictions, administrative orders, draft orders, final orders, and judicial final judgments. C. Convictions of a criminal offense within the past ten (10) years, which resulted in bodily harm or death. d. Any other safety related matter deemed by the City Council to be material in determining the responsibility of the respondent and his or her ability to perform the services or goods required by the solicitation documents in a safe environment, both for the workers and other employees of respondent and the citizens of the City of Denton. In order to obtain proper information from respondents so that City of Denton may consider the safety records of potential contractors prior to awarding bids on City contracts, City of Denton requires that respondents answer the following three (3) questions and submit them with their submissions: RFP 5963 • Main Document Page 16 of 23 Contract 5963 Exhibit G EXWBIT 4 city 0 enton RFP for Construction of Substation Precast Security Fences QUESTION ONE Has the respondent, or the firm, corporation, partnership, or institution represented by the respondent, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of OSHA within the past three (3) years? YES NO X If the respondent has indicated YES for question number one above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such citation: Date of offense, location of establishment inspected, category of offense, final disposition of offense, if any, and penalty assessed. QUESTION TWO Has the respondent, or the firm, corporation, partnership, or institution represented by the respondent, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of environmental protection laws or regulations, of any kind or type, within the past five years? Citations include notice of violation, notice of enforcement, suspension/revocations of state or federal licenses, or registrations, fines assessed, pending criminal complaints, indictments, or convictions, administrative orders, draft orders, final orders, and judicial final judgments. YES NO If the respondent has indicated YES for question number two above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such conviction: Date of offense or occurrence, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed. QUESTION THREE Has the respondent, or the firm, corporation, partnership, or institution represented by respondent, or anyone acting for such firm, corporation, partnership, or institution, ever been convicted, within the past ten (10) years, of a criminal offense which resulted in serious bodily injury or death? YES NO X If the respondent has indicated YES for question number three above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such conviction: Date of offense, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed. RFP 5963 - Main Document Page 17 of 23 Contract 5963 Exhibit G EX%AI 4 City o ent ono RFP for Construction of Substation Precast Security Fences &.1XIAN 13 5MMIXIM 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: Town of Flower Mound LOCATION: Flower Mound,'FX CONTACT PERSON AND TITLE: Aimee 11anei, Landmark SCOPE OF WORK: Screen Wall manufacture and instaflatica CONTRACT PERIOD: multiple contracts since 2011 REFERENCE TWO GOVERNMENT /COMPANY NAM: (rity of (;,,all(l pl, ig.je LOCATION: Grand Prairic,'FX CONTACT PERSON AND TITLE: Lee Hart-is, Special Distrid Manager TELEPHONE NUMBER: 972-237-8091 SCOPE OF WORK: Screen Wall manul'acture and installation CONTRACT PERIOD: multiple contracts since 2008 REFERENCE THREE GOVERNMENT/COMPANY NAME: Chy of'North Richland [fills LOCATION: North Richland Hills, CONTACT PERSON AND TITLE: Joe Pack, Senior Planner TELEPHONE NUMBER: 817-427-662 SCOPE OF WORK: Screen Wall manufacture and CONTRACT PERIOD: wnultiple contracts since 2007 RFP 5963 - Main Document Page 18 of 23 Contract 5963 Exhibit G CEXAIT 4 ity o enton RFP for Construction of Substation Precast Security Fences PROJECT INFORMATION FORM Please detail three (3) of the most recent projects your firm has completed: Project #1 Name of Project: Denton State School Project Owner Name, Address and Phone Number: Texas 11calth and flumAn Servrces Commission 4405 N Lamar, 11t6kfing I X `/8756 ,512-20(-5880 Original Contract Amount: S385,000,00 Final Contract Amount: S385%000.00 Contract Time Allotted (Calendar Days): 1.301 days Start Date for Project: i1, -1. 20 15 Final Completion Date for Project: 12 18,201 iC Number of Days to complete (calendar days): 108 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered. Hawk Construction acted as the General Contractor on this project. L I I'm, 1, Cons � ru ef ion vvas responsi We for the In �n nu fincl it i-ing, del h c rN a iid insiallat ion of V v rf I- ( 're,ft, Pre- ( "im Screen 7 all almig ,I Section of the perimeter of the S(:hool, 1, Hark Const rudk.)n Nin as Aso •eqwilsihic for (1101° c'oordilkation and supervision of 3 addifional conlraciors ill different trades" including -'Isphalt/Concrete P"whig, 01•11alikewal and ('111,141•Link Fevwcing "star~ ping and 3. On this parficular job, lhimL, lmdaddhiowd aand safel), concel�ns %ve h"Id to con-pply "'ith do!e W, ghe nature of the f:icifiq 4" EAT11 % ith delays due to wifio ri!-Iocafes and inclemenl nealher, lLm k Constivdim) Was able to complete theJoll 6 Ni eel%s earky, RFP 5963 - Main Document Page 19 of 23 Contract 5963 Exhibit G EMIBIT 4 1 City o Denton RFP for Construction of Substation Precast Security Fences PROJECT INFORMATION FORM Project #2 Name of Project: AtI110S Energy C,oi-poration Service Center Project Owner Name, Address and Phone Number: Awn EnnM CIM, Senke cemer Hwy 77 & WK; I mne 11 w.wawlwamw °lwlw °, 1 "W 75165, 215421,3353 Original Contract Amount: S221,'45"uw Final Contract Amount: S219,122.00 Contract Time Allotted (Calendar Days): & wlwwyaw Start Date for Project: 10-19,2015 Final Completion Date f o r Project: 1 1 - 20.2015 Number of Days to complete (calendar days): 32 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered. 1, Hawk CorioruclWn NianuhroinviL DeNver"I. W WWWd cwm 13WVW of 8" W % cab( We Inv us! scrNm wa 11 a pround than pe HmeW r o r Me nv% eM Mnws snTke coder A NAA x AWK T X, 2. Hank ewnunwrul a rocy sWYwH which mquireil cheaddhional heQ of it rock ddHing truck. 11"e wNv "o oWT ksms emomloW and Ham lk m as We to Wch the stone mW"whe budding in the customer's silfisl`ilc�fion' 3. Agnin Flack "as We la Wng the pndml io cwnpkHon A umhw 1h"YMrwWd We name &qMe hwWranki we"Oher delays and 'a Space conswicted siw RFP 5963 - Main Document Page 20 of 23 Contract 5963 Exhibit G I; T 4 1,10 At YNWen on RFP for Construction of Substation Precast Security Fences Project #3 Name of Project: Valley View Independent School District, Main C.arnpus Project Owner Name, Address and Phone Number: VAIC'N' V'h'v ISD 200 `,Iewlc�n Street % X "76. '8 17 -2 62 Original Contract Amount: tit 75,793M0 Final Contract Amount: S 18,3,189.00 Contract Time Allotted (Calendar Days): 1. 20 Start Date for Project: K7-2015 Final Completion Date for Project: 11.- 3,3...2M -5 Number of Days to complete (calendar days): 108 Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encountered. i , 111 a W 1" C u 11 S f I I I C 4 i (W it Ilia RI I a fia c I I I r'ed I ) el i N e re d , a V' I d i I t S I'l I l e d 4 P v e I- o e I-t 2v C P r t a S I Sc 1, C e I D 4vall along the entravire to the VaHe� Vie% ISI) main ca nil"Aus ske I I)espiliv, severM dehk�q; for inclement Nveather, u6fil ' v re-hlwatiom' and Several chmqge orders for ad'i list en t, lo site locations and add-4nis. Al vs pile )rorking on several other sites h 0"of0ruction ivas able niobifize nwhiple fignes and finished the project on finle, RFP 5963 - Main Document Page 21 of 23 Contract 5963 Exhibit G CIt 3 EXW I e yo P T 4 nton RFP for Construction of Substation Precast Security Fences "06 k6g—'A�%W'06� 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 0 Check this box if you are riling 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 71 business day after the date on which you became aware that the originally filed questiormaire 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-1 E-1 No Yes 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? F-1 Yes E-1 No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? 0 � No Yes D. Describe each employment or business and family relationship with the local government officer named in this section. I have no Conflict of Interest to disclose. 5 Tp;t—ure of vendor doing business with the governmental entity Date V RFP 5963 - Main Document Page 22 of 23 Contract 5963 Exhibit G &XIy 0 eIbBIT 4 nton RFP for Construction of Substation Precast Security Fences 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. In submitting a response the undersigned further understands that the work required is to provide construction of the project that functions as described in the specification. The undersigned understands that all requirements of the construction may not be described in every detail and agrees to provide labor, tools, material and equipment necessary to complete all construction to make the project functional as described in the specification and drawings 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 sea., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, sea. 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://ww-w.cityofdenton.com/index.aspx?pa,ize=397 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 December 16, 2015 Addendum No 2 Dated Addendum No 3 Dated NAME AND ADDRESS OF COMPANY: Walsh's flawli C'onstrliction LIA 5002 Ilwy 380 Princeton,'TX 75407 Tel. No. 972-547.-6652 Enna. esti rria ting(ib [jaw, lcpi-ecast. coryl Received Received Received December 16, 2015 AUTHORI ED REPRES TATIVE: Signature Date Name -J Is Title Ad m, ti, ;vki-k Fax No. 972-542-020t RFP 5963 - Main Document Page 23 of 23 Certificate Of Completion Envelope Id: FFFB2E68FEOB4FA3926AACF6FAD86D73 Subject: Please DocuSign: Contract Documents 5963 Source Envelope: Document Pages: 92 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Disabled Time Zone: (UTC- 06:00) Central Time (US & Canada) Record Tracking Status: Original 2/9/2016 5:01:35 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: John Walsh john @hawkprecast.com Administrator Walsh's Hawk Construction Co., LLC Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: 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 Winkley julia.winkley @cityofdenton.com 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) Electronic Record and Signature Disclosure: Not Offered ID: EXHIBIT 4 Holder: Karen E. Smith karen.smith @cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 ocuSigned bye: Ell A84L 6C .. Using IP Address: 66.180.100.65 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: 2/9/2016 5:05:14 PM Viewed: 2/9/2016 5:05:26 PM Signed: 2/9/2016 5:06:00 PM Sent: 2/9/2016 5:06:04 PM Resent: 2/9/2016 5:06:59 PM Viewed: 2/10/2016 9:45:43 AM Signed: 2/10/2016 12:12:50 PM Sent: 2/10/2016 12:12:55 PM Viewed: 2/10/2016 12:39:41 PM Signed: 2/10/2016 12:40:01 PM Sent: 2/10/2016 12:40:05 PM Viewed: 2/10/2016 1:27:41 PM ' StCUfttb 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: Chris Lutrick chris.lutrick @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 1/22/2016 8:21:32 AM ID:08cec3f5- 472a -45f2- 9853- 9bc38078799c Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 2/10/2016 12:12:53 PM Viewed: 2/10/2016 12:34:52 PM 6Ya 'i i i f ►]f [� 1 f �Z � S[ chi i ►a f i i ►� F .7 c i f ��i EXHIBIT 4 Signer Events Signature Jennifer Walters jennifer .walters @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: In Person Signer Events Signature Editor Delivery Events Status Agent Delivery Events Status Intermediary Delivery Events Status Certified Delivery Events Status Carbon Copy Events Status Julia Winkley julia.winkley @cityofdenton.com �� Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Sherri Thurman sherri.thurman @cityofdenton.com COPIED 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: Chris Lutrick chris.lutrick @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 1/22/2016 8:21:32 AM ID:08cec3f5- 472a -45f2- 9853- 9bc38078799c Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 2/10/2016 12:12:53 PM Viewed: 2/10/2016 12:34:52 PM 6Ya 'i i i f ►]f [� 1 f �Z � S[ chi i ►a f i i ►� F .7 c i f ��i EXHIBIT 4 Carbon Copy Events Status Timestamp Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 2/10/2016 12:40:05 PM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Robin Fox, Chris Lutrick 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 D EN'FON File #: ID 16 -284, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager or his designee to execute an Investment Advisory Services contract with First Southwest Asset Management, Inc. for investment advisory services; providing for the expenditure of funds therefor; and providing an effective date (File 6086 in the two (2) year not -to- exceed amount of $52,000). The Audit/Finance Committee recommends approval (3 -0). FILE INFORMATION The City's investment advisory contract is guided by the Public Funds Investment Act (PFIA) which allows a contract term of no longer than two years and requires a City Council ordinance to renew or extend the agreement. The current contract with First Southwest Asset Management, Inc. (FSAM) expires on May 31, 2016. FSAM has assisted the City in various capacities since 1998; however, the current contract began in June 2008 which expanded the scope of their services. The City currently pays FSAM a quarterly fee of $6,500 which was reduced from $9,000 in October 2010 at staff's request due to the challenging economic environment at the time. FSAM has continued to honor the reduced fee structure. FSAM brings numerous advantages to the fiduciary investment relationship with the City. One important benefit has been the access to security offerings provided by their extensive broker /dealer network of 30 participants. FSAM is unique among investment advisors in their ability to offer their clients a large number of security offerings made possible through the use of Hilltop Securities, Inc. (formerly, First Southwest Company) clearing operation. The securities clearing operation eliminates the need for the City to maintain active accounts at each individual broker - dealer while allowing it access to all 30 broker /dealer inventories under the Hilltop account. This provides the City access to many more security offerings than would otherwise be possible from most other investment advisors and allows FSAM to find the most competitively priced securities for their clients amongst a broad array of market participants. FSAM is in the market daily due to the large number of assets under management ($7.5 billion) which, in turn, helps facilitate competitive pricing from their broker /dealer network. All security purchases and sales for the City are conducted on a documented competitive basis with FSAM required to show the three most competitive offers or bids. They are also required by the City to remit random broker /dealer tickets for review on a quarterly basis. The City currently holds more than 80 positions in its portfolio with a valuation of approximately $500 million. Other benefits of the FSAM relationship include: City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -284, Version: 1 1) Provision of a daily market newsletter which supplies pricing information and trends for varying types of securities at different maturity levels which aids staff in planning security purchases. 2) Access to timely market data, pricing, and inventories through their Bloomberg terminals. 3) Assistance with special requests and research projects such as collateral valuation, money market fund /pool comparisons, investment accounting questions, U.S. government agency and commercial paper issuer research, investment policy modifications, etc. 4) Help with the establishment of the City's CD program by locating additional banks willing to participate. 5) Attendance at staff -held quarterly investment committee meetings to discuss economic trends, interest rates, and investment strategies. 6) Participation in new issue and secondary market municipal securities offerings when the market presents opportunities to increase spreads over comparable Treasuries and agencies. 7) Detailed quarterly economic and market analysis, as well as daily e -mail notifications as events unfold Since this contract is for professional services, it is exempt from competitive bidding requirements. More importantly, staff is pleased with the services provided by FSAM, and it is unlikely that another firm in the marketplace could provide a better combination of value, expertise, and access for investment advisory services. As a result, on January 11, 2016 the staff composed investment committee unanimously recommended approval to renew the FSAM contract for an additional two years. PRIOR ACTION /REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 23, 2016, the Audit/Finance Committee recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award an Investment Advisory Services contract with First Southwest Asset Management, Inc. in the two (2) year not -to- exceed amount of $52,000. PRINCIPAL PLACE OF BUSINESS First Southwest Asset Management, LLC Austin, TX ESTIMATED SCHEDULE OF PROJECT This is a two (2) year contract that expires on May 31, 2018. FISCAL INFORMATION These services will be funded from General Fund Finance account 160099.7879. Fees are assessed on a quarterly 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: Organizational Excellence City of Denton Page 2 of 3 Printed on 2/25/2016 File #: ID 16 -284, Version: 1 Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit 1: Ordinance Exhibit 2: Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Tony Puente at 349 -7283. City of Denton Page 3 of 3 Printed on 2/25/2016 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN INVESTMENT ADVISORY SERVICES CONTRACT WITH FIRST SOUTHWEST ASSET MANAGEMENT, INC. FOR INVESTMENT ADVISORY SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6086 IN THE TWO (2) YEAR NOT -TO- EXCEED AMOUNT OF $52,000). WHEREAS, Section 2256.003 of the Texas Government Code permits cities to contract with an investment management firm in the exercise of their power to purchase, sell and invest their funds in investments authorized by the Public Funds Investment Act; and WHEREAS, on June 1, 2008, the City of Denton ( "City ") and First Southwest Asset Management, Inc. ( "FSAM ") entered into an Investment Advisory Services Contract whereby FSAM was designated as the investment advisor for the City beginning June 1, 2008 and ending May 31, 2010, with a possible two -year extension of the Contract not to extend beyond May 31, 2012; and WHEREAS, the City and FSAM initiated a two -year contract which began June 1, 2012 and ending May 31, 2014; and WHEREAS, the City and FSAM initiated a two -year contract which began June 1, 2014 and ending May 31, 2016; WHEREAS, the City and FSAM desire to initiate a two -year contract which will begin June 1, 2016 and ending May 31, 2018; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is authorized to execute a two -year contract between the City and FSAM for investment advisory services for an amount not to exceed $52,000, a copy of which is attached hereto and made a part hereof for all purposes. SECTION 2. The following officials: Bryan Langley, Assistant City Manager; Charles Springer, Director of Finance; Antonio Puente, Jr., Assistant Director of Finance; and Caroline Finley, Treasury Administrator are hereby authorized to transact business with the above listed institution regarding investments for the City. SECTION 3. The City Manager is authorized to make the expenditure of funds and fees and take the actions as required by the Investment Advisory Services Contract as amended. SECTION 4. This Ordinance is enacted pursuant to and in accordance with Section 2256.003 of the Texas Government Code. EXHIBIT 1 SECTION 5. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR EXHIBIT 2 AGREEMENT FOR INVESTMENT ADVISORY SERVICES BY AND BETWEEN THE CITY OFDENlON,TEXAS AND FIRST SOUTHWEST ASSETMANAGEMENT, LLC This Investment Advisory Agreement (the 'Agreement) iamade by and between the City of Denton, Texas (the ^'C1ty`) and First Southwest Asset hJun4gcmcot. LL[. (^^PS/kM"). 'This agreement shall bc effective umof the date of its acceptance 6ythe City as indicated on the signature page hereof The tconof this agreement shall commence ooJune l, 2816 and conclude on May 31, 2010. This agreement may be extended for additional two (2) year periods upon approval 6y the City. D. Terms and Conditions This Agreement sets forth the terms and conditions governing the relationship oF the City NFSAM with respect to securities and money which the City in its discretion may make available for investment or reinvestment (the "Funds"). This Agreement shall apply to these investable funds during the period in which this Agreement shall bcioeffect. 88. Investment Advisory Services A. Services. With respect to the Funds, F8AM will endeavor toprovide investment advisory services and cause m6oexecuted such investments ao determined in accordance with Section 11.13 below. FSAM agrees to provide professional services and its facilities and to direct and coordinate all programs of investing as may be considered and authorized by the City and to assume and pay d6nue expenses incurred by FS&y4 in connection with the execution of investment decisions. Specifically, F8/\M agrees to perform the following duties: | Review and recommend changes tu the City's investment policy annually, consistent with tile provisions of Chapter 2256 and 2257 of the Texas Government Code and other applicable federal, state and local laws; Z Advise the 0y oil current market conditions and other Amcm| financial and investment information through direct conversation, e-mail and other acceptable means of communication; 3. Advise in the iovosmcm of the avui|m6|c OmJo uoJ, as directed by the City, cause the transactions tuho executed ooa fully documented and competitive basis; 4. Maintain and provide an authorized broker/dealer list from which securities will be competitively bid; 5. Assist in the security clearance process; 6. Promptly send (or cause tobm sent) trade confirmations /n the City; 7. Verify collateral pricing oyneeded; 8. Attend quarterly meetings with City s1ntT to discuss 0000uo6c trends, interest rates and investment strategies; anJ, EXHIBIT 2 Provide staff with research, analysis and market-related projects as requested. B. Scope of 0uvcmmm*nt Decisions. In performing the services listed in 5eodou ILA above, ESAM shall not have discretionary authority and, accordingly, shall obtain approval from the City for the investment of any City Funds. The City hereby represents and acknowledges that its written iuvcaUnorK policy and investment oko1ugy includes its investment o6jcnhvc* and all portfolio limitations and restrictions, including, without limitation, acceptable levels nf investment risk. The City also agrees to notify FSAK4iowriting ten business days in advance of the implementation oFany changes iu the City's investment objectives, investment limitations, and/or financial condition. The City will give FSA81 immediate verbal notice and w6ucu notice within five Jxyn of receipt of any trade cooGnnu6nom should the City believe any iuvembnuo/ in the Funds violates the City's investment objectives or limitations. G Standard ofCare. In the administration of its duties, FSAM shall exercise the judgment and care, under prevailing circumstances, that a prudent person would cucrcioc in the muougcn`unt of the person's own affairs, not for speculation, but for iuvcohnunt conaiJoring, with nz@ou| to the entire EuoJy rather than any particular investment or ocou6(y, the probable safety of capital and the probable income to6cderived. D� Settlement ofSecurities. 'The purchase ofindividual securities shall be executed "delivery versus payment" (DVP)through the City's safekeeping agent. Byuo doing, City funds will be released when and if the City has received, through the safekeeping agent, the designated securities purchased. E. Return on the Portfolio. The City expressly affirms and acknowledges that F5AM has not promised or guaranteed any stated orspecified return on, or performance o[ the City's Funds, and FSAM is not responsible for any market losses arising with respect to the Funds. 111. Representations & F8AMnpresents that itin registered maninvestment advisor under the Investment Advisers Act of lV40 (the "Advisers Act`) and is authorized and empowered |o enter into this Agreement. B. The City represents and confirms that (l)the City has full power and authority to enter into this /\grrcmcrx; (2) the terms hereof do not violate any obligation by which the City is 6ouod, whether arising by contract, operation of law, or otherwise; and (3) this Agreement has been duly authorized by and will 6n binding un the City according to its terms. C. The City shall allow FSAMm rely upon all information regarding schedules mother inforrnation pertaining to the Funds as provided toJby the City as being true and accurate. FSAM shall have no responsibility to verify, through audit or investigation, the accuracy or completeness of such information andR8AM will not undertake ,* authenticate any such Information and [S/\Mwil| not undertake to authenticate any such information. D. The City recognizes that there may be loss m depreciation nfthe current liquidation, immediate and ongoing value o[ any investment due to the fluctuation o[market values. The City represents that oo party to this Agreement has made any guarantee, either oral or written, that the C.ity`xiovcounoo1 u6ioc6roo will be achieved. F8&M xhoU not be liable for any unnr in judgment and/or for any investment losses in the Funds in the absence of willful malfeasance, gross negligence, or violation of applicable law. Nothing in this Agreement o6o|| constitute u waiver o, limitation o[ any rights that the City may have under applicable state or federal law including without limitation, the state and federal securities laws. E City represents and acknowledges that City has reviewed and understands the risk factors and fees associated with the Funds. EXHIBIT 2 TV. Fees and Costs of FSAM As consideration for the services provided 6yFSAM under this Agreement, FSAM will be entitled to o fee (Um "Advisor Fee") dotonninc6 in a000u|ouco with the schedule set forth in the fee schedule ("Schedule A"), a copy of which is attached hereto, is incorporated herein for all put-poses and ia being delivered tothe City simultaneously with the execution, and as an integral part, of this Agreement. The obligation of FSAM to pay or incur cxpuoycx akuU not include any costa incident to litigation, mandamus uc6uo, regulatory investigation, test case nr other similar legal actions. The Advisor Fee will 6c payable quarterly ioarrears. In the event this &grcenucnu is tconinu1c6 prior to the end of quarter, the Advisor Fee shall be prorated and paid within 38 days oftermination. V. Reporting and Account Statements FSAM will deliver or cause to be delivered to the City confirmation of investment and monthly statements for the Funds invested as set forth in this Agreement. The monthly statement will cuOnu all investments, including date of investment, purchase price, current price, date of maturity, profit or loss and cash balances. FSAM will also provide the City with all annual valuation of the City's Funds and any additional statements that may be required by applicable law, including the reporting provisions of the Public Funds lovcytmcut Act, or other applicable state law, with respect to transactions effected under this Agreement. VK Other Services The investment advisory services provided hereunder byPBAMNthe City are exclusive of any other services that FSAM may provide to the City. VIL Execution nfInvestment Transactions A. Affiliated Bnmkcr. PSAM is affiliated dxooAh common ownership and control with YU|kup Securities Inc. ("FITS"), o registered broker/dealer with the Financial Industry Regulatory Authority (^^FlNRA''), the D.8. Securities and Exchange Commission ("SEC"), and various state and territorial regulatory authorities. The City hc/c6y authorizes P8AM 10 effect |mowodiooa for its Funds by cxocudonthroughRT8.YV6crotmomuo6uuoane8eotcdthzoughBTS,BTSmuyuctonunug000yor principal basis to the uxium pcnniurd by law. Pursuant to Rule 206(3) of the /\Jviocro Act, FS/\M will obtain the City's consent oil each investment transaction to allow FITS to act aao principal io acquiring u security ,o facilitate otrade. B. Bundling of Iovm*m,mu TroummcUnos. Transactions for each client account generally will be effected independently mJoe FSAM decides to pu,Jmac or wJ| the monm securities for sovcnJ of its o|ioo$ ut approximately the same time. F8&yJ may (but ia not obligated to) combine or'^bWrK' such orders to obtain bue/ execution. Under this prnucdmn. transactions will be averaged as to price and will be o|looatcdumoog FSAK4^a clients included in the ^1butch" group io proportion to the purchase and sale orders placed for each client in batch transactions. ViUl^ Selection oKBrokers The City agrees that when FS&M effects or p|uo*o orders for the cxoou600 of transactions for the Funds (other than situations where the City specifically instructs otherwise in writing), F8/\M may allocate such transactions to such brokers and dealers for execution oil such markets, at such prices as in the judgment of FSAKJ will be in the best interests wf the City, taking into consideration, in the yulcdiwo of such brokers and dealers, the available prices and rates of brokerage commissions and other relevant factors, Without having to demonstrate that such factors are of a direct benefit to the City. Subject to the foregoing, FSAM will arrange for the execution of securities transactions for City Funds through brokers or dealers that FSAM reasonably believes will provide best execution. EXHIBIT 2 IX. Relationship The City hereby acknowledges that P8AM`* services under this Agreement are nonexclusive, and that FGAM shall 6ofree to render the same m similar services m other clients. The City further acknowledges that FSAM^o advice is specific to each individual City's investment objectives, limitations and financial condition. ThcrufomF8&M, io the pc6onnanoc of its investment advisory duties, may give advice to, and take action on behalf of, other clients that may differ from the advice given, or the timing and nature ofthe action taken, with respect to the City's Funds. Nothing io this Agreement aho|| be deemed to impose upon FS&D4 any obligation to purchase or sell, or to recommend for pmz6aec or sale for the City's Fuude, any security that fS&M or its uEGliutuo may purchase or sell, for their upm account or for the uocouroy of any other client i[ at the ao|c discretion uf[8&M. it is for any renono undesirable or impractical to take such action ormake such recommendation for the City's Funds. The City also acknowledges that F8/\M has varying fie structures and arrangements with other clients and may charge other clients different fees, which may 6x higher or lower than the fees charged with respect t* the City's Funds for similar services. X. Instructions from the City FSAM may rely on all instructions (whether oral mwritten) given by the City mits agents that FSAM believes to6c genuine. Instructions may be given to F6AM by any officer or agent authorized by(l) the investment policy; (2) udu|y executed "Authorization tn [mdu Public Funds" form provided 6y FS/\M; or (])u resolution of the governing body *f the City. FS&M may rely on such authorization until written notice to the contrary is delivered to F6&M by the City; and if the City does not deliver appropriate authorizing Jocmmuotniion, FSAM may accept instructions from any person reasonably 66icvcJ by FS/\h& to be an officer ofthe ity. XI. Transactions Subject koIndustry Regulations and Standards All transactions shall besubject to the regulations of all applicable government authorities and self- regulatory agencies including, but not limited to, the constitutions and rules of the clearing agent, exchange, or market where executed. The City understands that FBAM is registered asuo investment advisor under the /\Jviycro Act, and as such im obligated to comply with all applicable laws and regulations, including those of the SEC and other rrgo|utn,y and self-regulatory agencies, and agrees that FS&M shall not be |iu6|c to the City as u result of any action /ukcu by FSAM to comply with any ruling, intuq`o'odoo, or directive of such organizations. Further, the City understands and agrees that FSAM will not accept any instructions from the City which would require o violation uf any such rules orregulations. XII. Assignment Nei8erF5AM nor the City may assign any ofits rights, authorizations, o, obligations under this Agreement without the prior written consent of the other party. XIXD. Term and City's Right oyCancellation This Agreement shall become effective oxof the date hereof and continue for uperiod of two (2) years. This Agreement may be extended for additional two (2) year periods upon approva 6y the City. Either party may terminate this Agreement upon delivering to the other party thirty (3U) calendar (lays' prior written uo(oo. |o addition, the City may toonioutc this Agreement without penalty for u period of five (5) 6usiuuyo days after the date it is executed 6ythe City. The City may exercise this right by giving written notice to p8/\Mndthio the required time period. In the event of1omzoadon, it is understood and agreed that only the unnumty due to FSAM for services provided and expenses incurred to and including the date of tennination, plus those costs and cxpcoaen incurred or Sustained ao o result uf the tuonioaiiou` will be due and payable, No penalty will be auoouyoJ for termination of this /\27ocmoru. In addition, the parties hucuno agree that upon termination n[this Agreement FSAM shall have no continuing obligation to the City regarding the investment of funds or performing any other services contemplated herein. EXHIBIT 2 XUV. Custodial Arrangements Custody of the Funds' invested assets will be maintained with ucustodian selected by the City and identified toF8AM (the "Costodiun]. FS&M will not have custody of any assets in the Funds. The City will bcsolely responsible for paying all fees or charges of the Custodian. The City uutm6rom FSAW W give Custodian instructions for the purchuse, aa|4 conversion, rcdomp6on, uxckuoAc or retention of any security, cash or cash equivalent or other investment for the Funds. Xx/ Miscellaneous A. Notices u the City. All written Communication N the City shall be sent to the City's address set forth on the signature page hereof or as directed in writing to FSA&Y by the City. Any oo6oc, statement, or other communication mailed to the City by F8AM in accordance with this ooc6nn will be deemed to be given to the City personally on the date it so mailed, whether or not it is actually received by the City. B. Notices to FSAM. Any notice, statement, or other communication from the City to FSAM under this Agreement must be in written forrn and will be deemed to be given to FSAM upon actual receipt thereof by FSAM whether such notice was mailed, personally delivered, or telecopied to: FirstSout6wost Asset Management, LLC 3O0 West Sixth Street, Suite 1940 Austin, Texas 7Q7O\ Attention: Mr. Scott McIntyre Fax Number: (5|2)48l'2020 C. CnnOdeohu| Relationship. All of the information and advice furnished by either party to the other under this Agreement, including their ccmpco6vc agents and omp|oyocs, will be or*rJ as strictly confidential 6y each party and will not be disclosed tn third parties under any circumstances except as required bylaw. D. Limitations ufLiability. Federal and state securities laws impose liabilities under certain circumstances on persons who do not act in good faith and, therefore, nothing in this Agreement shall in any way constitute u waiver nrlimitation of any rights that the City may have under federal and state securities E. Indemnity. The City will indemnify FG&K8 for any loss, liability, or expense (including attorney's fees) which FSAM may incur aso result of, orarising from, any claims asserted byany third party with respect tothe Funds or the ecrviucn nuJmm:d byFS&K1 under this Agreement, except in cases of gross negligence nr willful misconduct 6yF8AK{io managing the City's Funds. F. Ioonwmiotmot Provisions; Agreements. If any provisions of this Agreement should become or be found to be inconsistent with laws, rules, or regulations of any government or regulatory body having jurisdiction over the subject matter herein, such provisions uknl| be deemed modified or rescinded in uocurJanoo with any such |oww, rules, or regulations. To the extent that the provisions of this Agreement are inconsistent with the provisions of any account agreement or clearing agreement with PS&hJnrits clearing agent, as the case may be, thcnFS/\M shall provide notice <o the City to resolve the conflict. O. Invalid Provisions. If any provision or condition of this Agreement shall be hc|J to be invalid or uoen6nrucy6\u by any Court, or regulatory or self-regulatory agency or body, such invalidity or uocnG`/cco6Uity shall ounoh only to such provision or condition. The validity of the remaining provisions and conditions y6uU not be affected, and this Agreement uhu|| be carried out as if any such invalid oc unenforceable provision or condition were not contained herein. K. Waiver of Terms. F8AM'u [bi\uco to insist at any time upon strict compliance with any 1cnn* of this Agreement shall not constitute a waiver of any of FSAM's rights as described herein. -5- EXHIBIT 2 1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard m its principles of conflicts oFlaws. J. Extraordinary Events. Neither FS/\M nor any of its officers, directors, shareholders, atB|iWzu. AcncoJ partocra, omp|oyoca, agents, or koaioco a6u|| be |ia6|c for luoouo ouueod directly or indirectly by guvcnomoot restrictions, uuou6(ica exchange or market actions, euopcominon of trading, wars, strikes, Jcluyu in the transmission of nrJom due to 6rcukJovm or failure of transmission or communication facilities, or any other causes beyond FSAM's reasonable control or anticipation. K. Written Disclosure Statement. Simultaneously with the execution of this A8roomcnu. PS/\M has delivered 10 the City Part Dof its Form &D\/ax filed with the SEC, ora similar disclosure document, nm its brochure pursuant to Rule 204.3 of the Advisers Act. The City's execution of this Agreement shall be JccmoJ acknowledgment of receipt thereof. L VcriGuoduu of Information. The City rcpzcmemm and warrants to FSAM that all information Gucnio6c6 to F5/\M in uoonco6ou with the Agreement (and all documents supplied by the City in this regard, including Gnoouiul statements) are true, complete, and correct. F8/&8i is entitled to rely on this information until FSAM receives written notice of any change, which the City agrees to furnish promptly should any material changes occur. [THE REMAINDER OF THIS PAGE l8 [NTENTDON ALLY BB BLANK, THE NEXT PAGE l8 A SIGNATURE PAGE. EXHIBIT 2 SCHEDULE A FEE SCHEDULE AND EXPENSE ITEMS In consideration for the services rendered byRrstSouthwestAsset Management, LLC ("FSAM`) in connection with the investment of the Portfolio for the Cby, it is understood and agreed that its fee will be at fixed quarterly rate of $6,500. The fees due FSAM shall be due and payable 30days following the conclusion of each calendar quarter. Said fee includes all costs of services related to the investment services provided under this Agreement. Any other fees camed byF6AM relating to City transactions, shall bc disclosed to the City. Fee Calculation for Investment of Bond Proceeds into Pbmibb Repurchase /kg,cenmmm (~Flex Rcpoa°) and Guaranteed Investment Contracts (°GlC,s"): In the event that specific bond proceeds are invested by ESAMoz per instruction of the Investor into either a Flex Repo or GIC, FSAM shall be entitled to the lesser of $39,000 or 0.2 percent (0.002) of the aggregate amount reasonably expected as of the issue date to be deposited over the term of the contract. This fully disclosed fee would be paid to FSAM by the winning bidder. -8- EXHIBIT 2 By signing this Agreement, the undersigned City official acknowledges receipt of a copy of this Agreement, including Schedule A. CITY OF DENTON, TEXAS 215 E McKinney Denton, TX 76201 Signature of Officer (Name) (Title) FIRST SOUTHWEST ASSET MANAGEMENT, LLC gnatUre of Officer Scott McIntyre Managing Director W Date Date City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -286, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a supplemental and amended engagement letter with the law firm of David A. Portz, P.C., Houston, Texas for Professional Legal Services to be provided to the Energy Management Organization of Denton Municipal Electric; authorizing the expenditure of funds therefor; providing an effective date (File No. 5554 -in the additional amount of not -to- exceed $50,000, aggregating not -to- exceed $175,000). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION On April 28, 2014, the City entered into an agreement with David A. Portz, P.C., in the not -to- exceed amount of $75,000, for legal services to be rendered to the Denton Municipal Electric - Energy Management Organization ( "EMO ") relating to the review and negotiation of Edison Electric Institute (EEI) Master Agreements with various counterparties in physical power transactions. Portz is an experienced attorney whose practice is in the area of power trading and power- related transactions. On November 18, 2014, Council approved a first supplemental engagement letter with David A. Portz, P.C., in an additional amount not -to- exceed $50,000 for a total contract award of $125,000. This increased the scope of services that required Portz's experience in the area of power trading and power- related transactions. The activities of the EMO have since expanded and the further legal services of Portz are necessary in order to navigate International Swaps and Derivatives Association (ISDA) Master Agreements, implementation of Dodd -Frank Act (DFA) regulatory and compliance matters, and to review the necessary documentation regarding financial trading. This field of law is highly specialized and Portz complements the City staff regarding such activities. This supplemental engagement letter in the not -to- exceed amount of $50,000 would increase the total contract award to a not -to- exceed total of $175,000. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) City of Denton Page 1 of 3 Printed on 2/26/2016 File #: ID 16 -286, Version: 1 On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a supplemental engagement letter with David A. Portz, P.C. in the amount of $50,000 for a total contract amount not -to- exceed $175,000. PRINCIPAL PLACE OF BUSINESS David A. Portz, P.C. Houston, TX ESTIMATED SCHEDULE OF PROJECT The services to be performed will begin immediately upon Council approval. The agreement will remain in effect for the period which may be reasonably required for completion of the project. FISCAL INFORMATION The legal services will be funded from Denton Municipal Electric Power Supply Administration Operating Account# 600002.7856.9210A. 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: Public Utilities Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Supplemental Engagement Letter Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 2/26/2016 File M ID 16 -286, Version: 1 For information concerning this acquisition, contact: Phil Williams at 349 -8487. City of Denton Page 3 of 3 Printed on 2/26/2016 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 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD February 22, 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, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, Barbara Russell, and Brendan Carroll Absent: Susan Parker and Lilia Bynum Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA F. PUB16 -041 - Consider a recommendation of approval of a second supplemental and amended engagement letter with the law firm of David A. Portz, P.C., Attorney, Houston, Texas, for professional legal services to be provided to the Energy Management Organization of Denton Municipal Electric; in the not -to- exceed amount of $50,000; aggregating a total of not -to- exceed $175,000 (File No. 5554). There was a motion by Board Member Russell to approve item F and a second by Board Member Gallivan. Vote 5 -0 approved. Adjournment 10:53 a.m. EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SUPPLEMENTAL AND AMENDED ENGAGEMENT LETTER WITH THE LAW FIRM OF DAVID A. PORTZ, P.C., HOUSTON, TEXAS FOR PROFESSIONAL LEGAL SERVICES TO BE PROVIDED TO THE ENERGY MANAGEMENT ORGANIZATION OF DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING AN EFFECTIVE DATE (FILE NO. 5554 —IN THE ADDITIONAL AMOUNT OF NOT -TO- EXCEED $50,000, AGGREGATING NOT -TO- EXCEED $175,000). WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to continue the engagement of David A. Portz, P.C. of Houston, Texas to provide professional legal services relating to the operations and regulatory compliance of the Denton Municipal Electric — Energy Management Organization; and WHEREAS, on April 28, 2014, the City Manager approved the original Engagement Letter to provide professional legal services to the City of Denton in the amount of not -to- exceed $75,000; and WHEREAS, on November 18, 2014, the City Council considered a supplement and first amendment to the Engagement Letter, in the additional not -to- exceed amount of $50,000; and enacted Ordinance No. 2014 -393; and WHEREAS, now there is a need to further supplement and amend the Engagement Letter for a second time as there are additional duties regarding the negotiation of EEI Master Agreements, ISDA Master Agreements, Dodd -Frank regulatory compliance, and other duties which require the services of a specialized attorney; Staff is seeking the sum of an additional $50,000 for such legal services through the end of the next Fiscal Year; the total not -to- exceed amount for this professional is not -to- exceed $175,000; 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 the City Council hereby finds and concludes that the law firm of David A. Portz, P.C., Houston, Texas (the "Firm ") is appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City; 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 additional professional legal services, as set forth in the supplemental and second amended Engagement Letter; NOW, THEREFORE, EXHIBIT 2 THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. SECTION 2. The City Manager, or his designee, is hereby authorized to execute a supplemental and second amended Engagement Letter dated February 11, 2016 with the law firm of David A. Portz, P.C., Houston, Texas for further professional legal services relating to the Energy Management Organization of Denton Municipal Electric; which supplemental and second amended Engagement letter is attached hereto as Exhibit "A," and is incorporated herein by reference. SECTION 3. The award of this supplemental and amended Engagement Letter is on the basis of the demonstrated competence and qualifications of David A. Portz, P.C. (the "Firm ") and the ability of the Firm to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided in the attached supplemental and second amended Engagement Letter is hereby authorized. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY WE APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY n By: 2 CHRIS WATTS, MAYOR EXHIBIT 3 DAVID A. PORTZ PC 3000 Bissonnet St. Suite 8306 Houston, TX 77005 Office 713 -533 -0075 Cell 713 -417 -9116 david portz(Mportzpc com_ February 11, 2016 Via e-mail to Michael Copelandna citvofdenton.com Mr. Michael S. Copeland Deputy City Attorney City of Denton 215 E. McKinney City Hall Denton, TX 76201 Re: Engagement Letter between City of Denton, Texas acting by and through Denton Municipal Electric ( "Client" or "DME ") and David A. Portz PC ( "PPC ") dated as of February 11, 2016 (the "Effective Date ") Dear Michael: This letter describes the basis on which my professional corporation will provide legal services on the matters described below, in continuation of our existing relationship relating to same. 1. Scone of Engagement Fees PPC Activities outside Enoaoement. PPC and Client are entering this services agreement to engage PPC to provide legal counsel to Client on (i) examination, analysis and assistance in negotiation of EEI Master Agreement documentation with certain designated prospective counterparties of Client, and examination, analysis, assistance in negotiation and preparation of other pertinent documentation related to creation of such commercial relationships, e.g., counterparty credit support documentation or netting arrangements, (ii) examination, analysis and assistance in the negotiation of ISDA Master Agreement documentation with certain designated prospective counterparties of Client, and examination, analysis, assistance in negotiation and preparation of other pertinent documentation related to creation of such commercial relationships, e.g., counterparty credit support documentation and /or Dodd Frank Act ( "DFA ") contracting and documentation requirements, (iii) assistance with DME's preparation for and implementation of DFA - oriented regulatory compliance measures, and (iv) such financial and physical commodities market - related contracting, matters and issues as Client and Firm may from time to time jointly determine, following requisite conflicts - checking and task definition. We have agreed as to the subject matter of the legal services described in this letter that PPC shall bill the time of David Portz to Client at the rate of $430.00 per hour for his services. Services hereunder shall be limited such that (i) aggregate fees billed shall not exceed Client's budgeted amount of $50,000.00 in relation to this agreement, and (ii) aggregate costs billed pursuant to Paragraph 2 below shall not exceed $10,000.00. This agreement covers PPG's provision EXHIBIT 3 David A. Portz PC 2 -11 -16 Engagement Letter— DME of services until September 30, 2017 or the full disbursement hereunder of the above referenced budgeted fees amount, whichever shall earlier occur. 2. Sc4't: In addition to fees for services, PPC invoices will include allowable, reasonable charges for documented disbursements, including parking, travel (transportation, lodging and meals when pertinent to business travel outside the Houston Texas inner loop area connected with representation of Bent computerized services, legal research, postage, messenger, courier and third parry photocopying telephone charges, filing fees, etc. Time spent traveling in connection with Client matters will to the extent practicable be utilized to review and make progress on Client matters subject to this engagement, to maximize the value derived by Client from compensation of PPC for that time. 3. Billings: PPC will render monthly statements of the professional services performed under the engagement, together with an itemization of the expenses incurred for Client's account in connection with such matter. PPC monthly statements will be prepared and e- mailed on or before the 10'" day of the month following the month in which services are rendered. Payment is due on or before the end of the month in which such invoice was delivered, assuming all pertinent information is provided on the statement. PPC reserves the right to collect interest at a rate of 3% per annum on any amounts remaining unpaid on a delivered invoice beyond such invoice's due date, as well as to accelerate all unpaid monthly invoiced amounts to a single payment immediately due and owing. On assurances of timely satisfaction by Client of PPC conforming invoices, no retainer amount was specified in relation to this engagement. 4. Task Organization Mattes PPC will strive to meet the timing requirements Client indicates with respect to any projects assigned. PPC is sensitive to the need to be efficient and economical in providing legal services to Client. To that end, PPC will coordinate with you on its delivery of legal services and strive to work closely with Client staff as may be necessary or appropriate to adhere to Client's internal controls and enhance efficiencies. Where PPC is requested by senior commercial or credit representatives of Client to undertake legal services on Client's behalf, PPC shall take up such tasks sensitive to the time constraints communicated but strive to promptly coordinate with you or other pertinent Client legal group members to assure such matters are appropriate to this engagement. 5. Document retention: Unless agreed otherwise, stored PPC materials will be scheduled for disposal following the passage of two years. PPC will take appropriate measures to maintain such materials confidential. 1 look forward to continuing work with you, Michael, and serving the DME organization. Please cause a copy of this letter to be countersigned on behalf of Client and returned to me at your soonest convenience. [The remainder of this page is blank.] 2 EXHIBIT 3 David A. Portz PC 2 -11 -16 Engagement Letter — DME This agreement when executed will be effective as of the Effective Date. Approved and Agreed: City of Denton, Texas, a Texas Municipal Corporation ( "Denton Municipal Electric ") By: Name: Title: ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: /�hj DA i K, Sincerely, avid Portz for David A. Portz PC City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 1'&IM111iffidrith w ww.cityofdenton.com D EN'FON File #: ID 16 -287, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a second supplemental and amended engagement letter with Lloyd Gosselink Rochelle & Townsend, P.C. for professional legal services relating to the pending litigation entitled the City of Denton, Texas v NRG Power Marketing, LLC, et al; authorizing the expenditure of funds therefor; providing for retroactive confirmation, ratification and approval thereof; providing an effective date (File No. 5771 -in the additional amount of not -to- exceed $800,000, aggregating not -to- exceed $1,395,000). The Public Utilities Board recommends approval (5 -0). BACKGROUND It has become necessary for Denton Municipal Electric to hire outside legal counsel in order to pursue recovery against NRG Power Marketing, LLC ( "NRG ") for alleged breaches and other causes of action regarding the "Full Requirements Wholesale Electric Power Service Agreement" approved by City Council and entered into on May 17, 2011, and effective as of July 1, 2011. Previously, it was hoped that the issues between NRG and the City could be resolved amicably. However, settlement negotiations of this matter have thus far been fruitless. Lloyd Gosselink is familiar with the complex issues involved in this litigation. Discovery is now in progress. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. Based upon the Firm's professional qualifications, expertise, reputation, knowledge of electric operations and economics, and the firm's prior representation of municipally -owned electric utilities, including Denton Municipal Electric, staff was of the opinion that Lloyd Gosselink was a good fit to pursue complex litigation against NRG. The initial letter of engagement with Lloyd Gosselink was entered into on February 13, 2015, and was approved on that date by the Acting City Manager in the not -to- exceed amount of $95,000. Thereafter, on February 20, 2015, litigation ensued. On July 21, 2015, Council approved the first supplemental and amended engagement letter in the not -to- exceed amount of $500,000. The case is now pending on the trial docket of the 16t' Judicial Court of Denton County, Texas with a non -jury setting for November 2016. Now, the City must actively pursue its legal remedies against three (3) NRG entities. The City has pleaded for recovery of its attorney fees and costs, among other damages and causes of action. Therefore, staff is now requesting additional expenditure authority in an amount not -to- exceed $800,000 to continue the needed legal services. PRIOR ACTION /REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 1 of 2 Printed on 2/25/2016 File #: ID 16 -287, Version: 1 Approve a second supplemental and engagement letter with Lloyd Gosselink Rochelle & Townsend, P.C. in the additional not -to- exceed amount of $800,000, for a total contract award not -to- exceed $1,395,000). PRINCIPAL PLACE OF BUSINESS Lloyd Gosselink Austin, TX ESTIMATED SCHEDULE OF PROJECT This agreement will be in effect until all required services are completed or until all authorized funds have been expended. FISCAL INFORMATION The legal services will be funded from Denton Municipal Electric account 600001.7854.9210A. A line will be added to Purchase Order 171849 upon Council 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: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit 1: Public Utilities Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Supplemental Engagement Letter Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Mike Copeland at 349 -8158. City of Denton Page 2 of 2 Printed on 2/25/2016 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 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD February 22, 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, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, Barbara Russell, and Brendan Carroll Absent: Susan Parker and Lilia Bynum Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA G. PUB16 -042 - Consider a recommendation of approval of a second supplemental and amended engagement letter with Lloyd Gosselink Rochelle & Townsend, P.C. for Professional Legal Services relating to the pending litigation entitled the City of Denton, Texas v NRG Power Marketing, LLC, et al; authorizing the expenditure of funds therefor; providing an effective date (File No. 5771 - in the additional amount of not -to- exceed $800,000, aggregating not -to- exceed $1,395,000). There was a motion by Board Member Russell to approve item G and a second by Board Member Gallivan. Vote 5 -0 approved. Adjournment 10:53 a.m. EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND SUPPLEMENTAL AND AMENDED ENGAGEMENT LETTER WITH LLOYD GOSSELINK ROCHELLE & TOWNSEND, P.C. FOR PROFESSIONAL LEGAL SERVICES RELATING TO THE PENDING LITIGATION ENTITLED THE CITY OF DENTON, TEXAS V NRG POWER MARKETING, LLC, ET AL; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE CONFIRMATION, RATIFICATION AND APPROVAL THEREOF; PROVIDING AN EFFECTIVE DATE (FILE NO. 5771 — IN THE ADDITIONAL AMOUNT OF NOT -TO- EXCEED $800,000, AGGREGATING NOT -TO- EXCEED $1,395,000). WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to continue the engagement of Lloyd, Gosselink, Rochelle & Townsend, P.C., Austin, Texas to provide professional legal services relating to the pending litigation entitled: The City of Denton, Texas v NRG Power Marketing, LLC, et al; and WHEREAS, on February 13, 2015, the Acting City Manager approved the original Engagement Letter to provide professional legal services relating to the claims of the City against NRG; and WHEREAS, on July 21, 2015, the City Council considered a supplement and first amendment to the Engagement Letter, in the additional not -to- exceed amount of $500,000; and enacted Ordinance No. 2015 -214; and WHEREAS, now there is a need to further supplement and amend the Engagement Letter for a second time as there are two new parties defendant involved in the case, which case is now set for non jury trial in the month of November 2016, in the additional amount of $800,000, totaling a not -to- exceed amount of $1,395,000; 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 the City Council hereby finds and concludes that the law firm of Lloyd, Gosselink, Rochelle & Townsend, P.C., Austin, Texas (the "Firm ") is appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City; 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 additional professional legal services, as set forth in the supplemental and second amended Engagement Letter; NOW, THEREFORE, EXHIBIT 2 THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. SECTION 2. The City Manager, or his designee, is hereby authorized to execute a supplemental and second amended Engagement Letter dated February 12, 2016 with the law firm of Lloyd, Gosselink, Rochelle & Townsend, P.C., Austin, Texas for further professional legal services relating to the pending litigation entitled: The City of Denton, Texas v NRG Power Marketing, LLC., et al; which supplemental and second amended Engagement letter is attached hereto as Exhibit "A" and is incorporated herein by reference. SECTION 3. The award of this supplemental and amended Engagement Letter is on the basis of the demonstrated competence and qualifications of Lloyd, Gosselink, Rochelle & Townsend, P.C. (the "Firm ") and the ability of the Firm to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided in the attached supplemental and second amended Engagement Letter is hereby authorized, and the previous expenditures regarding this project are hereby confirmed, ratified and approved. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY itz APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY n By: 2 CHRIS WATTS, MAYOR EXHIBIT 3 Ll,oy�j ,& Gosselink f—iii-i A I 'I () R N 11 Y1, A T L A \\ Is I uenic s Direct I mc (312} 2-1 -,�Nd9 1 1 W: 1khtlucow " 1(dm, ilm com 816 Congress Avenue, Suite 1900 Austi " le.xaF 18701 Tclq' hono: (5 12) 322 5800 Facsimile (517)472-0532 February 12, 2016 Ms. Anita Burgess City Attorney Cite of Denton 215 Fast McKinney Denton. 'I cxas 70201 Re: Second Supplcment and Amendment to February 13, 2015 FlIgagwillent Letter - City of Denton Billing File: Number: 1060-48 Dear Anita: This letter supplements; and amends the February 13, 201' EngniLgement Letter between the City of Demon and Lloyd Gosselink Rochelle & Townsend. P.C. ("Lloyd Gosselink") regarding the ity's claims against NRG Power Marketing. LLC. (-NRG") to exp ressly authorize - additional amounts payable above the Ninety-Five Thousand Dollar s ($)5,000) authorized in the kngagement Letter and the Five I lundrcd Thousand Dollars ($500.000) authorized in the July 2, 2015 SuppIcnicrit and Airiendnictit. The elTorts to reach an early, negotiated resolution of the dispute between the City and NRG have not been successlu). Therelore, contested litigation of' the dispute is necessary. To that crid, this letter supplements and amends the February 13, 2015. 1- f), constitutes express - gagcIllent Lettcl, and the July 2. 2015 Supplement and Amendment and constit i s aulliori/alion by the City to increase the amounts payable related to the Representation providcd to the City by Lloyd Gosselink by all additional sum not to exceed Fight I lundred Thousand and No/100 Dollars (sw).()Otmm). 11' this Second Supplement and Amendment to the parties' Engagement Letter is acceptable. we would appreciate you signing and returning one of'the enclosed four originals of this document. Sincerely, /,c 1, dc 1, RlCnte i-j()y(i (3oss(,,link i ochcllc & 'l'(r%vns(.n(l, 11I.C'. EXHIBIT 3 1`61-LU11-y 11 20 16 Page 2 Approvcd As to Legal Form: 0 -4 ...... Anita Burgess, City 4vtonley George C. Campbell, City Manager Date JEF:cad City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -288, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a First Supplement to Amendment to an engagement letter for professional legal services by and between the City of Denton, Texas and Herrera & Boyle, PLLC. for legal services pertaining to pole attachment license agreement, right -of -way agreement, collections from Verizon and other possible pertinent agreements; providing for the expenditure of funds therefor; and providing an effective date (File No. 5592 in the additional amount of $65,000; aggregating a total not -to- exceed $130,000). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION On June 30, 2014, the City entered into an agreement with Herrera & Boyle, PLLC in the not -to- exceed amount of $65,000, for legal services to pursue collection alternatives with Verizon regarding pole attachment fees that were allegedly in default. The City has been in negotiations with Verizon regarding this matter. At the same time, there have been other issues that have arisen for which Mr. Freddie Herrera ( "Herrerra "), a partner of the firm has advised the City. These issues include: the use of City right -of -way by Zayo under an agreement between the City of Denton and Denton Independent School District; the implementation of a new Pole Attachment License Agreement; explanation of the new Federal government formula for determining pole attachment rates; the issue of a new City Right -of -Way Agreement; possible ancillary agreements that are necessitated by both agreements; and the status of two (2) ongoing complaints at the Public Utilities Commission of Texas regarding the imposition of license agreements. Herrerra is an experienced Board Certified attorney whose practice is in the area of electric and telecommunications law matters. These areas of law are highly specialized which requires staff to seek professional legal assistance. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -288, Version: 1 RECOMMENDATION Approve a First Supplement to the amendment to an engagement letter with Herrera & Boyle, PLLC. in the not -to- exceed amount of $65,000 for a total contract award not -to- exceed $130,000. PRINCIPAL PLACE OF BUSINESS Herrera & Boyle, PLLC. Austin, TX ESTIMATED SCHEDULE OF PROJECT The services to be performed will begin immediately upon Council approval. The agreement will remain in effect for the period which may be reasonably required for completion of the project. FISCAL INFORMATION The legal services will be funded from Denton Municipal Electric Operating Account# 600001.7854. A line will added to Purchase Order 168907 upon Council 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: Public Infrastructure Related Goal: 2.3 Promote superior utility services and facilities EXHIBITS Exhibit l: Public Utilities Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Supplement to Engagement Letter Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance City of Denton Page 2 of 3 Printed on 2/25/2016 File #: ID 16 -288, Version: 1 For information concerning this acquisition, contact: Mike Copeland at 349 -8158. City of Denton Page 3 of 3 Printed on 2/25/2016 h rvvm d by I cx:ls i''I 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 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD February 22, 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, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of Denton Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, Barbara Russell, and Brendan Carroll Absent: Susan Parker and Lilia Bynum Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities OPEN MEETING CONSENT AGENDA H. PUB16 -043 - Consider a recommendation of approval of a first supplemental and amended engagement letter with the law firm of Herrera & Boyle, PLLC, Austin, Texas, regarding professional legal services pertaining to issues regarding pole attachment license agreements, right -of -way agreements, Verizon pole attachment collections and possibly additional agreements in the not -to- exceed amount of $65,000, aggregating a total of not -to- exceed $130,000 (File No. 5592). There was a motion by Board Member Russell to approve item H and a second by Board Member Gallivan. Vote 5 -0 approved. EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST SUPPLEMENT TO AMENDMENT TO AN ENGAGEMENT LETTER FOR PROFESSIONAL LEGAL SERVICES BY AND BETWEEN THE CITY OF DENTON, TEXAS AND HERRERA & BOYLE, PLLC. FOR LEGAL SERVICES PERTAINING TO POLE ATTACHMENT LICENSE AGREEMENT, RIGHT -OF- WAY AGREEMENT, COLLECTIONS FROM VERIZON AND OTHER POSSIBLE PERTINENT AGREEMENTS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE NO. 5592 IN THE ADDITIONAL AMOUNT OF $65,000; AGGREGATING A TOTAL NOT -TO- EXCEED $130,000). WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to continue the engagement of Herrera & Boyle, PLLC. of Austin, Texas to provide professional legal services relating to the operations of Denton Municipal Electric and third -party compliance with the City's operations; and WHEREAS, on June 30, 2014, the City Manager approved the original Engagement Letter to provide professional legal services to the City of Denton in the amount of not -to- exceed $65,000; and WHEREAS, now there is a need to further supplement and amend the Engagement Letter for the first time as there are additional duties required of the Firm, including the drafting of a pole attachment license agreement, a right -of -way agreement, resuming collection activity with Verizon and drafting other pertinent agreements which require the services of a specialized law firm; Staff is seeking the sum of an additional not -to- exceed $65,000 for such legal services, for a total not -to- exceed amount for this law firm of not -to- exceed $130,000; 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 the City Council hereby finds and concludes that the law firm of Herrera & Boyle, PLLC, Austin, Texas (the "Firm ") is appropriately qualified under the provisions of the law to be continued as outside legal counsel for the City; 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 additional professional legal services, as set forth in the supplemental and first amended Engagement Letter; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. EXHIBIT 2 SECTION 2. The City Manager, or his designee, is hereby authorized to execute a supplemental and second amended Engagement Letter dated February 18, 2016 with the law firm of Herrera & Boyle, PLLC, Austin, Texas for further professional legal services relating to the matters described above; which supplemental and first amended Engagement letter is attached hereto as Exhibit "A," and is incorporated herein by reference. SECTION 3. The award of this supplemental and first amended Engagement Letter is on the basis of the demonstrated competence and qualifications of the Firm and the ability of the Firm to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided in the attached supplemental and first amended Engagement Letter is hereby authorized. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY ME APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: 2 CHRIS WATTS, MAYOR EXHIBIT 3 f`ebruary 18, 2016 Mr. Michael, S. Copeland Utility Attorney City of Denton — Denton Municipa Electric 215 East McKinney Street Denton, Texas 76201 Re: Supplement to Engagement between H&B and the City of Denton — ROW Management Ordinance; Pole Attachment License Agreement; and Verizon Pole Attachment Collection [-)car Mr. Copeland: In follow tip to our conversations regarding services our firm is to provide the City of Denton and Denton Municipal Electric, first I thank you for the continued confidence you place in our firm and for the opportunity to continue to assist the City with the issues it continues to face regarding use of its rights of way and other public property. As we discussed there are three overarching tasks that you have asked us to undertake: I Prepare a Right-of-Way Management Ordinance that is, among other parameters, consistent with the requirements of Chapter 283 of the Local Government Code; 2. Prepare a Pole Attachment Ucense Agreement that addresses the more routine attachments to DME's poles, but also addresses attachments by providers of "wireless" facilities or services; and 1 Continue our efforts at collecting from Verizon or its successor(s) in interest, past-due amounts for attachment, of Verizon's facilities to DME's poles. To carry out these tasks I estimate our fees would totat an amount not to exceed $65,000.00. A breakdown of our fees for each prowject is as follows: ROW Management Ordinance $9,500 Pole Attachment License Agreement $18,500 Verizon Collection-Pole Attachment Fees $65,000 I of 3 Suppler eni to Enge4qement lwler: Denlon-H&B EXHIBIT 3 As in our current engagement, while I personally will perform much of the work on this project, other lawyers and legal assistants employed by our firm may also work in providing you our services under this Engagement Letter and it] preparing our reports to you. My hourly rate for this project is $345.00 per hour, 1' 1 he time for our legal assistants will be billed at $1.25,00 per hour and the time for our legal clerks is billed at $100.00 to $175.00 per hour. The time for our associates' services will be billed at a rate ranging frown $290.00 to $310.00 per hour. The names and the billing rates for the other attorneys in our office who may assist me under this Engagement Letter are noted below: NAM. E BILL1NC`V RATE .. . .......... - Jason Wakefield $310.00 Brennan Foley $290.00 As we discussed, it is difficult to provide a precise amount for our services but the not-to- exceed $65,000.00 represents my best estimate of our legal fees to represent and assist Denton in these matters; this amount does not include fees and expenses that would be expected with representation of Denton should this become a litigated matter. Nonetheless, we will keep a close watch on our time and expenses. With this supplement, our total engagement would be for an amount not to exceed $130,000.00. 'I"he fees for our services will be based on the tune we spend working on project at the hourly rates 11 note above. These rates are subject to change once a year. Generally you will be billed for all time spent on your matter. Our firm bills in minimum one-tenth hour increments. We will forward billing statements monthly to You or to where you instruct us. Our statements will contain a description of the service we provided, including the date the service was provided, the person pertbrming the service, the amount of time involved, and a description of the task performed. Our monthly statements also will itemize monies we have expended on your behalf for such things as travel and accommodations, long distance telecommunications, photocopies, facsimile (fax) transmissions, and electronic legal research charges. Payment is due within fourteen (14) days from the date of the invoice. As a matter of course we do not charge otir clients for meals while traveling and our billing rate for travel time is one-half of our regular billing rates. We have performed a conflicts check and found no apparent and current conflicts. If you find the terms for our continued engagement of our services acceptable, please so indicate by signing where noted below. If you have any questions or concerns, please call me to discuss them, NMI SupyVement to Engagement Letter: Denton-II &B EXHIBIT 3 We greatly appreciate the opportunity to continue to provide these services to Denton and look forward to our continued relationship. Sincerely, ..... ....... A d I-lerrera Principal in the Firm 512-474-1492 (office) 512-474-2507 (fax) 512-653-6462 (mobile) aherrcra 1, err a o lelaw',corn -11- ---@ I I -ev - --- - A- - 1. C- I K-,-.N..-. - Q. - WL- - - � Ut E� . ..... M E � N-- - T-A.- N- Q.- A - � C E PTANCE I have read this Engagement Letter and agree to engage the services of Ilerrera & Boyle, PLLC under the terms described above, and I am authorized to enter into this agreement. Date: l"February . ..... .... _, 2016 ATTEST: JL.NNIFER WALTERS, CITY ST CRE'rARY 0 APPROVED AS'ro LEGAL ]-'ORM: ANITA BURGESS, CITY A-171'ORNEY M3 OM Suppletnent to EngagelnentLeater: Denton-H&B City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -289, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of SEL protective relays, controls, monitoring, metering, software, integration, accessories, and devices for Denton Municipal Electric, which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 6046- awarded to Schweitzer Engineering Laboratories (SEL) in the three (3) year not -to- exceed amount of $2,240,000). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION Denton Municipal Electric (DME) has substation projects approved in its five (5) year Capital Improvement Plan that will require the purchase of protective relay, control, monitoring, metering, and integration hardware and accessories. These types of devices are all necessary to make substations functional. The majority of these devices are microprocessor based and highly technical in their design and application. They are used to operate and protect substation components, such as circuit breakers, busses, and transformers; to protect transmission lines in the event of faults, overloads, overvoltage, and other abnormal conditions; to provide metering; and to interconnect devices for communication, access, interaction and retrieval of information. Before designs can be prepared for substation relay and control systems, specific protective metering, control, monitoring and integration equipment must be selected. DME has chosen Schweitzer Engineering Laboratories, Inc. (SEL) as its standard for these types of hardware. There are several reasons for this. SEL has a larger line of devices than any other manufacturer. The SEL devices offer the greatest selection of features and the best capability for integration. Integration is the term used to refer to the ability for devices to communicate with each other and with other systems such as the Supervisory Control and Data Acquisition (SCADA) system. The warranty period for SEL devices is ten years. Customer support is superior. No other manufacturer offers the on -call application assistance and technical support that SEL offers. DME currently has over 600 SEL devices in service in existing substations. The majority are protective relays. SEL handles marketing directly on a nation -wide basis through manufacturer's representatives. There is no network of dealers for this highly technical product. Each area of the country is handled by only one representative. Because of this, there is no mechanism for competitive bidding (Exhibit 1). Therefore, staff is recommending Schweitzer Engineering Laboratories, Inc. as the sole source provider of this product (Exhibit City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -289, Version: 1 2). Chapter 252.022 of the Texas Local Government Code exempts from the competitive bid process, those supplies and resources protected by copyright or patent and available as a sole source. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award to Schweitzer Engineering Laboratories (SEL) in the three (3) year not -to- exceed amount of $2,240,000 PRINCIPAL PLACE OF BUSINESS Schweitzer Engineering Laboratories Fair Oaks Ranch, 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. Delivery time for all SEL devices is approximately 20 days. Orders will be placed as project schedules require. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded out of amounts budgeted for specific projects. The work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). 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 FYHIRITC Exhibit l: Vendor Sole Source Letter Exhibit 2: Staff Memo Exhibit 3: Public Utilities Board Draft Minutes Exhibit 4: Ordinance Exhibit 5: Contract City of Denton Page 2 of 3 Printed on 2/25/2016 File M ID 16 -289, Version: 1 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 2/25/2016 EXHIBIT 1 SCHWEITZER ENGINEERING LABORATORIES, INC. IS 2350 NE Hopkins Court • Pullman, WA 99163.5603 USA Phone: 509.332.1890 - Fax: 509.332,7990 www.selinc.com • info @selinc.com January 15, 2016 Chuck Sears Manager of Transmission Engineering City of Denton 1659 Spencer Rd Denton, TX 76205 Dear Mr. Sears: This letter is to confirm that KD Johnson Inc., based in Leonard, Texas, is the sole authorized sales representative for Schweitzer Engineering Laboratories, Inc. (SEL) products and services to be purchased in the State of Texas. As such, any quote inquiries or purchase orders for SEL products and services should be sent by the City of Denton to KD Johnson, Inc. at the address listed below: Schweitzer Engineering Laboratories, Inc. C/O KD Johnson, Inc. PO Box 1208 Leonard, TX 75452 Ph: (903) 587 -3373 Fax: (903) 587 -2509 quotes @kdjinc.com If you have any questions regarding this, please do not hesitate to contact me. I can be reached at Chris_Matthews @selinc.com or (509) 334 -5744. Regards, Chris Matthews Regional Business Manager Schweitzer Engineering Laboratories, Inc. 29250 Old Fredericksburg Rd, Suite 104 Fair Oaks Ranch, TX 78015 cc: Laura Cheek, City of Denton, Tom Butler and Jeff Steib, KD Johnson Inc. To: Karen Smith, Assistant Purchasing Manager From: Laura Cheek Date: January 13, 2016 Subject: SEL Sole Source Justification Karen, DME has substation projects approved in its five year Capital Improvement Plan that will require purchase of protective relay control, monitoring, metering, and integration hardware and accessories. These types of devices are all necessary to make substations functional. In preparing substation protective relay designs, specific equipment must be chosen for the application. The designs must be based on the exact hardware used. DME has standardized on Schweitzer Engineering Laboratories, Inc. (SEL), as its sole source for substation protective relay and integration equipment. There are several reasons for selection of SEL. First and foremost among these is reliability, SEL equipment performs consistently as intended. This has resulted in SEL being able to offer the best warranty in the industry at 10 years. All of their designs are ruggedized for the substation environment including the communication devices (for integration of devices into an interrelated and coordinated control and data acquisition environment). SEL also has the widest range of fully integrated, competitively priced products on the market for substation protective relay and integration. SEL is the only company that provides readily available product and technical support via telephone. There is always someone available to try and solve problems and answer questions during business hours. This support has proven to be invaluable in properly assessing fault information. Currently, DME has over 600 SEL devices in service at existing substations. Because of the performance, technical support, product availability, wide range of products produced, and the necessity to definitively select devices and design to those devices, DME has selected SEL as its sole source for protection and integration products. EXHIBIT 3 1 DRAFT MINUTES 2 PUBLIC UTILITIES BOARD 3 February 22, 2016 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is 6 present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on 7 Monday, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of 8 Denton Service Center, 901 A Texas Street, Denton, Texas. 9 10 Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, 11 Barbara Russell, and Brendan Carroll 12 13 Absent: Susan Parker and Lilia Bynum 14 15 Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities 16 17 OPEN MEETING 18 19 CONSENT AGENDA 20 21 D. PUB16 -038 - Consider making a recommendation that the City Council approve a 3 year 22 contract with Schweitzer Engineering Laboratories (SEL) for the purchase of SEL protective 23 relay, control, monitoring, metering, software, integration, accessories, and devices which are 24 available from only one source in the amount not to exceed $2,240,000. Chapter 252.022 of 25 the Texas Local Government Code exempts such purchases from the requirements of 26 competitive procurement. (File 6046) 27 28 Pulled for questions by Board Member Jackson. Jackson stated that the AIS says approval of the 29 sole source designation, and if a motion was made, what would be approved. Robinson 30 answered it would be approval of a three year contract and a sole source. Campbell added that 31 the caption that was posted is what is to be followed legally. 32 Carroll asked why it is sole sourced. Chuck Sears, Engineering Division Manager, answered 33 protection equipment is only used by utilities so there are not a huge number of manufacturers. 34 They also tend to be proprietary. When you go to a computer based system that is integrated that 35 is a whole new level. Most relay producers only do business through their own set of 36 representatives. If this company cannot repair the relay they will replace it. 37 38 There was a motion by Board Member Jackson to approve this item and a second by 39 Board Member Gallivan. Vote 5 -0 approved. 40 41 Adjournment 10:53 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF SEL PROTECTIVE RELAYS, CONTROLS, MONITORING, METERING, SOFTWARE, INTEGRATION, ACCESSORIES, AND DEVICES FOR DENTON MUNICIPAL ELECTRIC, WHICH ARE AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 6046- AWARDED TO SCHWEITZER ENGINEERING LABORATORIES (SEL) IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $2,240,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 6046 Schweitzer Engineering Laboratories $2,240,000 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. EXHIBIT 4 SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6046 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: EXHIBIT 5 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND SCHWEITZER ENGINEERING LABS (FILE 6046) THIS CONTRACT is made and entered into this date by and between Schweitzer Engineering Laboratories, Inc. a corporation, whose address is 2350 NE Hopkins Court, Pullman, WA 99163, 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 Supplier's proposal in response thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "E ". 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) City of Denton Standard Terms and Conditions (Exhibit "B "), (c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C "), (d) Certificate of Interested Parties Electronic Filing (Exhibit "D "), (e) Supplier's Proposal. (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." Contract 6046 EXHIBIT 5 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 DacuSigned by: BY: —[�6 c �ssec2AM439- Contract 6046 SUPPLIER DacuSigned by: BY: ftt" S6' kr fvlk MOV11aln. AUTH�tci1-r.li 3111 N X I utcr, 2/19/2016 Date: Elena Shaffer for Erik Newman Name: Title: Director of Business operations contract Administrator PHONE NUMBER elena_shaffer @selinc.com FAX NUMBER 509 - 334 -4946 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL CITY MANAGER Date: EXHIBIT 5 Exhibit A Special Terms and Conditions Total Contract Amount The contact total for services shall not exceed $2,240,000. Pricing shall be per Exhibit E attached. The Quantities indicated on Exhibit E 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. Delivery ICON products shall be delivered within eight (8) weeks after receipt of order, all other products shall be delivered within four (4) weeks after receipt of order for standard relays. 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 Benton urchasin `z�cit ofdenton.corn, 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. Contract Terms The contract term will be three (3) years, effective from date of award. Contract 6046 EXHIBIT 5 EXhihit R 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 solicitation are applicable to Contracts /Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Bidder, 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 Sellers 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. 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. 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 and 22 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. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terns 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 Coimnercial Code, to inspect the deliverables at delivery before accepting them, and to rej ect 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. Contract 6046 EXHIBIT 5 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. 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, 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 hmnigration 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 elseq.). 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. Contract 6046 EXHIBIT 5 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 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; 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. Any such amounts withheld shall be limited to the Purchase Order that is not in compliance, and shall be paid within thirty (30) days of correction and acceptance by the City of the non - complying Purchase Order. 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 perir it 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. 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. Contract 6046 EXHIBIT 5 B. The snaking 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. The City shall have the right to audit and copy only those records of Contractor relating to time and expenses or non- fixed price projects. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. 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 Contract 6046 EXHIBIT 5 benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. 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. Contractor warrants that products are free from defects in material and workmanship for ten (10) years after shipment for all Contractor products, including Contractor - manufactured control enclosure structures and panels. This warranty is conditioned upon proper storage, installation, connection, operation and maintenance of products, prompt written notice to Contractor of any defects and, if required, prompt availability of products to Contractor for correction. This warranty shall be void in its entirety if the City fails to implement required product upgrades, modifies products without prior written consent to and subsequent approval of any such modifications by Contractor or uses products for any applications that require product listing or qualification not specifically included in the Contractor written quotation or proposal. If any product fails to conform to this warranty, the City properly notifies Contractor of such failure and the City returns the product to Contractor factory for diagnosis (and pays all expenses for such return), Contractor shall correct any such failure by, at its sole discretion, either repairing any defective or damaged product part(s) or making available, freight prepaid, by Contractor (Carriage Paid To (CPT) customer's place of business) any necessary replacement part(s) or product(s). Any product repair or upgrade shall be covered by this warranty for the longer of one (1) year from date of repair or the remainder of the original warranty period. 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 Contract 6046 EXHIBIT 5 under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. D. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONTRACTOR'S WARRANTIES FOR DELIVERABLES AND SERVICES SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), EXCEPT TITLE AND PATENT INFRINGEMENT. Contractor shall, whenever possible, pass the original manufacturer warranty to Buyer for non - Contractor products. Contractor does not warrant non- Contractor products, including non- Contractor control enclosure structures, and non- Contractor products within Contractor panels, control enclosure structures and systems, and products or prototypes provided by Contractor for testing, marketing, or loan purposes. 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 Contract 6046 EXHIBIT 5 and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 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, 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- In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall Contractor be liable for any special, consequential, incidental, or liquidated damages, including without limitation any loss of profit or revenues, loss of use of products or associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs or claims of the City's customers for such damages. Contract 6046 EXHIBIT 5 Notwithstanding any term in this Contract, Contractor's liability to City of Denton or its insurers for any loss or damage regarding this Contract shall be limited as follows: i) for those claims covered by Contractor's insurance where City of Denton has been named as an additional insured upon the applicable insurance policy, Contractor's liability shall be limited to the amount of the applicable insurance policy; ii) for all other claims except those arising as a result of Contractor's violation of applicable law or patent infringement, Contractor's liability shall in no event exceed $1,000,000, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Attachment A. 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. In the event that the Contractor performs services on -site, 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. 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 Contract 6046 EXHIBIT 5 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 parry may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. Contract 6046 EXHIBIT 5 38. OWNERSHIP AND USE OF DELIVERABLES: Contractor retains all its intellectual property rights. All documents, designs, drawings, plans, specifications and other work product (collectively "Work Product ") prepared by Contractor in performing services for the City shall not be deemed "works made for hire" for the City. To the extent that any such Work Product is prepared by Contractor while performing the Project, Contractor hereby grants the City a perpetual, worldwide, non - exclusive, non - transferable, personal, revocable, limited license to use, copy and modify such Work Product for internal business purposes only 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire (Exhibit C). 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. 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 Contract 6046 EXHIBIT 5 writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre- printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 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 Contract 6046 EXHIBIT 5 New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 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 subj ected 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, in addition to the specific federally funded requirements. 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. Contract 6046 EXHIBIT 5 B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified 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 solicitation, 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: 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. l�tt �: / /www.exccess.gtL�s. n�sv/ lavisbacon /tx.lrtr?11 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 Worker's 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 Contract 6046 EXHIBIT 5 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. Contract 6046 EXHIBIT 5 Exhibit C 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. 2 El 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 7t" 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. 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? E-1 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 E-1 No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? E-1 Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. 4 ❑I have no Conflict of Interest to disclose. 5 DOGUSigned by: S6& kr fvlk "MaAA, 2/19/2016 1CC3B507FB3472... Signatuic of vc3iiuv1 uviiig DUsHIC" wiui Me gvvciiuiiciiLai c11«cy Date Contract 6046 EXHIBIT 5 Exhibit D 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 : rm I 295,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 the signature page of this contract. 5. Sign and notarize the Form 1295 6. Email the notarized form to pjLE� jq�ip g.C��,)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 6046 Contract 6046 Exhibit E EXHIBIT 5 Schweitzer Engineering Laboratories Product List and Unit Pricing 2015-2018 Unit Cost with Estimated Part # Description Required Option Quantities 0311L13DD4254X2XX Line current differential relay, 2 single/multi fiber ports $6,750.00 37 Overcurrent relay, front USB, Trip /Close pushbuttons, config labels, add 0351S6X3D4E542I $3,123.00 77 standard 12/8 - 1/0, dual copper ethernet 0387604X53XX4XX Transformer differential relay, thermal element $4,914.00 27 Line current differential relay, 2 fiber ports, standard 8/13 - I/O, High Current 0411LOX6X5B6DDX357424XX 8/13 - I /0, 5RU $10,760.00 37 0487BIX6X52XXXXE37EPXXX Bus differential relay, two additional I/O boards $7,906.00 15 0551COBX533X Overcurrent relay, EIA -232 front and rear ports $876.00 7 0587ZOX325312XX Bus differential relay, 2 MOVs $3,901.00 18 0734P09V1D1216E5X7D3A EPS Meter $2,492.10 44 210OXX4443 Logic controller, 16I/40 standard $2,457.00 39 240700013 Satellite clock, GPS antenna with 75' cable $1,350.00 27 200 -2005 Gas Tube Coaxial Surge Protector $100.00 27 200 -2006 Surge Protector Mounting Bracket $6.00 27 C953 RG -58 Cable, BNC connectors, 8' or less $11.00 95 C960 RG -6 Cable, TNC connectors, 8' $18.00 27 "'each additional foot over 8'- RG -6 $0.42 324 241421ABACACA850000 Transformer Monitor, HAO standard, Two 4I/30 electromechanical boards, $1,810.00 18 4 AC current input - 5amp phase /5amp neutral 241101AAOBAlA0X0000 Programmable automation controller, EIA -232 /EIA -485 serial cornm card, $1,387.00 18 Two 4Ii40 standard 35303AOD1211XOXXXXXX Automation Controller, 24I/80 standard, HMI Run -time license $6,300.00 9 35303AOXX211XOXXXXXX Automation Controller $4,050.00 47 Automation Controller, windows 7 professional, 6' 120VAC plug, 8GB ram, 3355 =BGN9 $6,794.00 9 two 60GB SSE, 3 PCIe serial cards, 1 PCIe Ethernet card 91610028 19" LCD touch screen monitor $720.00 9 91610050 -L Keyboard rack with mouse and locking tray $350.00 9 2730UOARAXIII IAAAAXO Ethernet Switch, (16) 10 /10013ase -T $1,350.00 39 5040 Event report retrieval and management software $1,325.00 9 2910 Cornmrmication port isolator $86.00 266 281OMT RS232 to Fiber Converter, Transmitter for plastic fiber $120.00 38 2810MR RS232 to Fiber Converter, Receiver for plastic fiber $120.00 38 2815 RS232 to Fiber Converter, Single Mode $183.00 16 361OX3AOXXXO Serial Port Server $1,620.00 26 3620X3AOXXXO Ethernet Security Gateway $2,520.00 26 2488PRAX1381AX2XX Satellite Synchronized Network Clock $2,340.00 10 2505434XX Remote I/O Module $517.00 4 3390S8AOOI 6 Port Serial Expansion Card for 3355 $450.00 5 ACSELERATOR® Diagram Builder SEL -5035 Software Configuration for vow $1,325.00 9 RTAC C272A Serial Cable, 8' $32.00 16 "'C272A - Each additional foot over 8' $0.31 64 C273A Serial Cable, 8' $32.00 900 "'C273A - Each additional foot over 8' $0.31 6300 C478N EIA -232 Serial Adapter Cable with IRIG -B Configuration, 6' $32.00 8 C605A EIA -232 Serial Cable, 8' $32.00 140 "'C605A - Each additional foot over 8' $0.31 3500 C662 -15 USB to Serial Cables - 15' $73.00 5 ICON - Integrated Connnunications Optical Network $10,852.67 10 2015 -2018 Total Estimated Quantity and Cost 1405 W x x W� o� U� N G^ O U m r, d m rl d o rnrn1-4mrnm o o mLnl m m o o H al mmr, NNd of ro Ill d, ol, co cod, -io) Ill O olt.00ld O mdlLn(D Ill O Ill r, vl vl n vl O Ill O O Ill Ill Ln O O O 0 0 0 0 0 N N O O Ill N" O W l0 N Ln N Ln O O Ill O Ill 0 0 rH rH m l0 I, N N N Ln O m O rH d' Ill lD I, i j j X X X X X X X X X X X X X X X X X X X X X X X X X X N X X X X X X X X X X X i X X X X X X X X X X X X X X .-i N M d' 111 X X X X N Ln tD X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X lV N N N N N N N N N N N N N N N N N N X X X X X X X X X X X X X X X X X X X X X X X X X X X X X x X x X X X X X X X X X X X X X X X X x X x X X X X X X X X Ln z X X X X X X X X X X X X X X X w t�. 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C Q 3 a d• N i m r-I N N — rl .•-. r-I r-I .•-. i--I N �{,� O ���rrlrrl�Hti�a�— O O O +� +� +� +� a� a, 3 m co ��o0om��+IJ3X m a, 3 m co m 3 N m d t� O O In Q ", Q ij i C7 ti ti ti O �n o 0 0 �n 0 0 i p .J 0 -p O -O i,� m rn C p m 0) �,� m rn C p m rn ', o I.n n In n In Vf O ' i �� CL Q Q 0 0 C CAS w C C Qj 3 J W Q O J W 3 J W Q p J w J J J J J '+ti q' U �` V N '" ,. u Ln N Ln N U O N f N O N N V N to N w N Q t3 N / a o o �, W �� �H X W� �� O� (D r^ U!� N G^ O U W �� �H X W� �� O� (D r^ U!� N G^ O U m Ln co E co bo Certificate Of Completion Envelope Id: E59D7BC29B5045E596DOF4E68A43A85D Subject: Please DocuSign: Contract Documents 6046 Source Envelope: Document Pages: 51 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Disabled Time Zone: (UTC- 06:00) Central Time (US & Canada) Record Tracking Status: Original 2/18/2016 8:03:55 AM 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: Elena Shaffer for Erik Newman elena_shaffer @selinc.com Director of Business Operations Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: 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 Winkley julia.winkley @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 5 Holder: Karen E. Smith karen.smith @cityofdenton.com Signature Completed ete Using IP Address: 129.120.6.150 ^^- D —Slg -d by' S a Nomav, ... — 3tCc3B507a ur3ar2 Using IP Address: 208.87.234.202 D—Sbo..d by: C82 $1,YWC2A2S439 Using IP Address: 129.120.6.150 Dow,.._ :. SeCUk4b Status: Sent Envelope Originator: Karen E. Smith karen.smith @cityofdenton.com I P Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 2/18/2016 8:07:54 AM Viewed: 2/18/2016 8:08:06 AM Signed: 2/18/2016 8:08:32 AM Sent: 2/18/2016 8:08:36 AM Resent: 2/18/2016 11:34:19 AM Viewed: 2/18/2016 11:34:53 AM Signed: 2/19/2016 2:00:57 PM Sent: 2/19/2016 2:01:04 PM Resent: 2/24/2016 8:27:24 AM Viewed: 2/24/2016 10:57:12 AM Signed: 2/24/2016 10:57:25 AM Sent: 2/24/2016 10:57:29 AM Viewed: 2/24/2016 11:32:12 AM 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 ❑erson Signer Events Editor ❑eliver❑ Events ❑gent ❑eliver❑ Events Cntermediar❑ ❑eliver❑ Events Certified ❑eliver❑ Events Caron Cop[] Events Julia Winkley julia.winkley @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: laura cheek laura.cheek @cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 5 Signature 1 IIIhIlll�;ll oiI�uii�1i111I�l�i�il��lllll� 1 .11111111 Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 2/19/2016 2:01:02 PM Viewed: 2/20/2016 8:54:49 AM Sent: 2/19/2016 2:01:02 PM EXHIBIT 5 Caron Cop[] Events Status Timestamp Electronic Record and Signature Disclosure: Accepted: 2/2/2016 1:20:50 PM ID: d579a165- 212b- 468c- 86ab- 6e6bd30611a3 Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Christy Hoyland christy_hoyland @selinc.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: ❑otar❑ Events Timestamp Envelope Summar❑ Events Status Timestamps Envelope Sent Hashed /Encrypted 2/24/2016 10:57:29 AM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Robin Fox, laura cheek EXHIBIT 5 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -290, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for sports officiating services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 6028- awarded to SED Referees in the three (3) year not -to- exceed amount of $153,352). FILE INFORMATION The Parks and Recreation Department offers several leagues for adults and youth, which require certified referees to officiate. Officials are needed for the following six (6) sports: adult and youth volleyball, adult and youth basketball, adult and youth flag football, adult and youth kickball, adult and youth outdoor soccer, and youth indoor soccer. Requests for Proposals (RFP 6028) were sent to thirty -three (33) prospective suppliers in December 2015. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. One proposal was received for this RFP from SED Referees. SED Referees is a local vendor that has satisfactorily performed this service for the City for the past four (4) years and is familiar with the Parks and Recreation staff and facilities. Therefore, staff recommends awarding this RFP to SED Referees as the best value for the City. RECOMMENDATION Award to SED Referees the amount per game specified in the attached pricing sheet (Exhibit 1) for an estimated annual total of $44,388 and a three (3) year not -to- exceed amount of $153,352. The three (3) year total includes a contingency to allow for approximately 10 percent growth of the current leagues, plus the addition of new leagues when the Roland G. Vela Athletic Complex is opened. PRINCIPAL PLACE OF BUSINESS SED Referees Denton, TX ESTIMATED SCHEDULE OF PROJECT City of Denton Page 1 of 2 Printed on 2/25/2016 File M ID 16 -290, Version: 1 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 This Agreement will be funded from Parks and Recreation operating accounts 411170.7868 and 411120.7868. Invoices will paid as services are performed for each sport. 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: 4.4 Provide and support outstanding leisure, cultural, and educational opportunities EXHIBITS Exhibit 1: Pricing and Evaluation Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Heather Gray at 349 -7218. City of Denton Page 2 of 2 Printed on 2/25/2016 IWI V) U LL LL 0 cr V) cr 0 r) L2 0 V) C: 0 uj O lD LL cr 4- 0) LLI V) v E Z C: ca ,u -0 0 C: 0- N cr X F- 0 4 c c 0 CL c 0 0 9 00 9 0 00 H 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 06 C) C) C) 00 o o o C) t6 o Cq o zl- 0 00 0 y V r4 0 rl� 0 C� � C� � lz:� Ln r- 0 N Ln M tD In m M Clq M Zl- Cr� r1l Cr� a) tR Ln m '@ IH r4 tD r4 r4 rr� rr� 00 lf� -L� 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 r� 0 0 � � 0 0 r4 0 r4 r1l r1l r1l r1l M � In m m In r4 rq r4 r4 cli cli cli cli Ln 0 � � � � � LL no 0 0 0 0 0 C? 0 0. 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O m N N N N r1l r1l r1l r1l if} if} if} if} if} ui — m 0 O 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q C C M -D -D 0 0 -D co 0 co 0 0 0 0 0 0 M m m m N rq N rq r-4 r-4 r-4 r-4 Lr) m 0 in 0 0 0 0 0 0 0 0 0 0 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q 0 q t6 06 iH ri r4 Ln �H Ln iH m r4 00 �H 0 r4 00 �H 0 r4 0 r-4 0 r-4 0 r1l 0 N Lr) N �t Ln 0 r4 0 r4 in 0 �D Lr) r4 00 00 0 N 0 r, Lr) Lr) lD I� n �D r4 r4 CO lD lD lD r, r, D D D D Z) Z) tD O tD r4 ct 0 tD 0 0 D 2U D V Y cu u cu w N CIO 0 0 w -0 C0 0 r M u 0 00 u 0 00 CIO -a cu -a u -a 0 0 0 0 0 0 ce in -C 3 0 '6 = 0 > < Y -a 3 0 -0 a 0 O 0 CIO -C -C -=) 0 -C -C 0 Y o 0 -2 0 0 0 -00 0 C: 0 0 0 0 -C 0 0 < 0 < < < < < ui W w w w w w w w w w w w w w LU UJ - - - - - - - - - - i-1 i-1 i-1 i-1 co Z Z Z 0 W c 0 0 0 9 00 9 0 00 H EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR SPORTS OFFICIATING SERVICES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 6028— AWARDED TO SED REFEREES IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $153,352). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of sports officiating 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 6028 SED Referees $153,352 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 RFP 6028 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 BY: DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AN SED REFEREES RFP 6028 — SPORTS OFFICIALS THIS CONTRACT is made and entered into this date , by and between SED Referees a corporation, whose address is 2305 Ranch House Dr., Denton, TX 76210, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and /or services in accordance with the City's document RFP 6028 — Sports Officials, 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) Form CIQ — Conflict of Interest Questionnaire (Exhibit "F "); (g) Contractor's Proposal. (Exhibit "G "); 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# 6028 Page 1 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 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: BY: C821996C2A28439... CONT 7�P9A1QPAARQrn42& aby: SM IESF WI j6, BY' AUTHORIZED SIGNATURE 2/5/2016 Date: Nelson Espinoza Name: SED Referees Title: 214 562 9644 Phone Number: CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: RFP# 6028 Page 2 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $153,352. Pricing shall be per Exhibit G attached. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment annually. The escalation/de- escalation will be based upon manufacturer published pricing sheets to the vendor. The price will be increased or decreased based upon the annually percentage change in the manufacturer's price list. The price adjustment will be determined annually from the award date. Should the change exceed or decrease a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment annually in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers pricing sheet used to calculate the bid proposal, to participate in the escalation /de- escalation clause. RFP# 6028 Page 3 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 Fxhihit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts /purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights -of -way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. RFP# 6028 Page 4 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. RFP# 6028 Page 5 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. RFP# 6028 Page 6 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities shall not be reimbursed, unless otherwise negotiated. RFP# 6028 Page 7 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. RFP# 6028 Page 8 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. RFP# 6028 Page 9 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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 Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. RFP# 6028 Page 10 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. RFP# 6028 Page 11 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non- conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. RFP# 6028 Page 12 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. RFP# 6028 Page 13 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. RFP# 6028 Page 14 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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 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. RFP# 6028 Page 15 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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 amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. RFP# 6028 Page 16 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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 similar or different character. RFP# 6028 Page 17 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 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 injunctive relief from any competent authority as contemplated herein. RFP# 6028 Page 18 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 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. RFP# 6028 Page 19 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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 hqp: / /www.dol.gov /whd/contracts /dbra.htm and at the Wage Determinations website www.wdol.gov for Denton County, Texas (WD- 2509). RFP# 6028 Page 20 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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. RFP# 6028 Page 21 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFPBid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions RFP# 6028 Page 22 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 Exhibit D INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at anytime; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A or better. Any deductibles or self- insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • 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. RFP# 6028 Page 23 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 • 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. [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. RFP# 6028 Page 24 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] 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. RFP# 6028 Page 25 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 [ ] Environmental Liability Insurance Environmental liability insurance for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger's Liability. Said coverage may be provided by a Rigger's Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11, Rigger's Liability Coverage form. Said coverage shall mirror the limits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. RFP# 6028 Page 26 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: RFP# 6028 Page 27 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and RFP# 6028 Page 28 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. RFP# 6028 Page 29 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 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 12urchasingLcityofdenton.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. RFP# 6028 Page 30 of 30 DocuSign Envelope ID: 683CB38A- 4099- 4A7E- AC3C- A84B38CE3084 EXHIBIT 3 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. SED REFEREE 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 Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? F—x—] Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes F—x—] No C. Is the tiler of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? F—x—] Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. n/a 4 X I have no Conflict of Interest to disclose. 5 Signed by: 2/5/2016 F fS iv' & k?49WM A@ -doing business with the governmental entity Date Certificate Of Completion Envelope Id: 683CB38A40994A7EAC3CA84B38CE3084 Subject: RFP 6028- Sports Officials for the City of Denton Source Envelope: Document Pages: 32 Signatures: 3 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC- 08:00) Pacific Time (US & Canada) Record Tracking Status: Original 2/4/2016 1:53:11 PM Signer Events Jody Word jody.word @cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Nelson Espinoza Suavenel@verizon.net SED Referees Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 2/5/2016 12:15:46 PM ID:3a3ba9a4- 5f74 -4f65- 9145- 35dee4a7ab66 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 Winkley julia.winkley @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 2/8/2016 9:54:02 AM ID: f945af41- 05cf- 4b4c- aee2- 68b8766d9ce9 George C. Campbell george.campbell@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: EXHIBIT 3 Holder: Jody Word jody.word @cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 Ell ... Signed by: ,I,S01n, �Spitnb�ja E2459FA689CD428... Using IP Address: 129.120.6.150 Ell ... Signed by: O�)' �Ov C821996CMM439... Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Jody Word jody.word @cityofdenton.com I P Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 2/4/2016 2:04:15 PM Viewed: 2/4/2016 2:04:34 PM Signed: 2/4/2016 2:05:24 PM Sent: 2/4/2016 2:05:26 PM Resent: 2/5/2016 6:20:55 AM Viewed: 2/4/2016 2:33:53 PM Signed: 2/5/2016 12:17:08 PM Sent: 2/5/2016 12:17:12 PM Viewed: 2/8/2016 8:57:21 AM Signed: 2/8/2016 8:57:30 AM Sent: 2/8/2016 8:57:33 AM Viewed: 2/8/2016 9:54:02 AM ' StCUfttb 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: Heather Gray heather.gray @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: EXHIBIT 3 Signer Events Signature Timestamp 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 Winkley� Sent: 2/5/2016 12:17:10 PM julia.winkley @cityofdenton.com Viewed: 2/5/2016 1:57:07 PM Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 2/8/2016 9:54:02 AM ID: f945af41- 05cf- 4b4c- aee2- 68b8766d9ce9 Sherri Thurman Sent: 2/5/2016 12:17:11 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: Heather Gray heather.gray @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: EXHIBIT 3 Carbon Copy Events Status Timestamp Jane Richardson jane .richardson @cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed /Encrypted 2/8/2016 8:57:33 AM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Nelson Espinoza, Julia Winkley, Julia Winkley, RobirLFXHIBIT 3 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -291, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of uniforms for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 6025- awarded to Impact Promotional Services, dba Got You Covered Uniforms in the three (3) year not -to- exceed amount of $328,650). RFP INFORMATION Uniform clothing items are needed for all Denton Fire Department (DFD) firefighters. Uniforms are purchased on an as needed basis each fiscal year for each firefighter. Per Standard Operating Procedure, the DFD complies with the National Fire Protection Association 1500 Occupational Safety Standard and 1975 Standard on Station/Work Uniforms which outlines the specifications for fire retardant clothing. In addition to these industry standards, the Texas Health & Human Services Commission requires the uniform to identify the respondents' appropriate Emergency Medical Certification. It is the Department's intention for the firefighter to be dressed in a uniform that best represents the City to the public, while meeting the aforementioned industry safety standards and having appropriate function for emergency response. It is also the Department's intention to maintain continuity of the existing uniform specifications for both economical and sustainable purposes, by avoiding the issuance of new sets for all employees. Requests for Proposals were sent to 177 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Five (5) proposals were received. The proposals were evaluated based upon published criteria including price and delivery schedule. A Best and Final Offer (BAFO) was conducted with the top three finalists. These finalists offered to supply all requested products. The top finalist, Impact Promotional Services dba Got You Covered Uniforms, offered an annual savings of $239 in their BAFO. The City of Denton has used this company in the past and it has provided the City excellent service, quality products, timely delivery and billing during previous orders. Therefore, Impact Promotional Services dba Got You Covered Uniforms was ranked the highest and determined to be the best value for the City (Exhibit 1- Evaluation/Best and Final Offer). RECOMMENDATION City of Denton Page 1 of 3 Printed on 2/25/2016 File #: ID 16 -291, Version: 1 Approve a contract with Impact Promotional Services, dba Got You Covered Uniforms in the three (3) year not -to- exceed amount of $328,650. The $328,650 amount includes a contingency for additional positions that may be approved during the contract time period and also uniforms for new hires that will fill positions vacated by employee retirements. The estimated quantities on the RFP pricing sheet reflect the minimum amount of each product that would be ordered. PRINCIPAL PLACE OF BUSINESS Impact Promotional Services, dba Got You Covered Uniforms Fort Worth, Texas 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 funding for the Fire Department uniform clothing is budgeted in the following Fire Department General Fund operating accounts: Fire Operations 320100.6312, Fire Prevention 320200.6312, and Fire Administration 320001.6312. 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: Organizational Excellence Related Goal: 4.1 Enhance public safety in the community EXHIBITS Exhibit l: Evaluation and Ranking Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Mike Bardwell at 349 -8871. 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LL m 1 z - z 0 z 0 0 0 0 0 0 0 0 0 1�1 0 0 0 m LL z 1 F- 1 a. z :) 0 (j) < < x < < < < < < < < < U) < 0 < D LU U) ca —0 0 LU 10 - In m 0 CL U) U) c r- a. z z z z z z 0 c 0 C . t 9 9 0 F ]U,.-) F--Fm t�rl-1 a 2 car) L a. g LU iml LU U) LU HIT LU U) LU U) LU -4) ul M EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF UNIFORMS FOR THE CITY OF DENTON FIRE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 6025— AWARDED TO IMPACT PROMOTIONAL SERVICES, DBA GOT YOU COVERED UNIFORMS IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $328,650). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of uniforms for the City of Denton Fire Department 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 6025 Impact Promotional Services dba $328,650 Got You Covered Uniforms SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. EXHIBIT 2 SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under RFP 6025 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 ffig APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND IMPACT PROMOTIONAL SERVICES DBA GOT YOU COVERED UNIFORMS RFP # 6025 THIS CONTRACT is made and entered into this date , by and between Impact Promotional Services dba Got You Covered Uniforms, a corporation, whose address is 1212 East Lancaster Avenue, Fort Worth, Texas 76102, 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 96025 — Supply of Fire Department Uniforms, 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 96025 (Exhibit "B" on rile at the office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C "); (d) Certificate of Interested Parties Electronic Filing (Exhibit "D "); (e) Supplier'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 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. SUPPLIER I C oc r5igned by: BY: L'V s %i N. . 17D146329E49479... AUTHORIGEll SIONAI URE 2/23/2016 Date: Chris Watson Name: Title: Principal 817 - 336 -0692 PHONE NUMBER 817 - 877 -5673 FAX NUMBER n/a TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY D"USigned by: BY: —[�6 C�21998C2AM439— RFP #6025 BY: GEORGE C. CAMPBELL, CITY MANAGER Date: DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit E 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 p, t i iz cityc)fcl .CO , 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 The City will implement an escalation/de- escalation price adjustment annually. Prices quoted for the commodities described in Exhibit E shall 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 Work Clothing (PCU3152203152205). 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. The supplier must also provide supporting documentation as justification for the request. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 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 supplier 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: pitLsP `z�tycttct.c�r� 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 a three -year total of $328,650. Pricing shall be per Exhibit E attached. Delivery Lead Time Products shall be delivered to the City per the days noted in Exhibit E after receipt of the order. Cooperative Purchasing / Piuyback Option The contract will be available for use by all governmental entities, providing there is no conflict with any applicable statutes, rules, policies, or procedures. The governmental entities will have the option to use the pricing as agreed to within the resulting contract. Governmental entities will issue their internal purchase orders directly to the contractor, however, shall reference and cite the City of Denton contract number (6025) within the purchase order document. After award, the contractor agrees to pay a service fee in the amount of 2% of the dollar amount of all issued purchase orders generated from use of this contract. The contractor further agrees to remit the service fee by check on a quarterly basis for the previous quarter spent through this contract, to Julia Winkley, Contract Administration Supervisor, at 901B Texas Street, Denton, TX 76209, on or by the fifteen (15 'h) day of each month, following the end of the quarter. The Contractor shall also provided quarterly sales reports from the contract awards and Purchase Orders issued from the Contract, for the purpose of billing and collecting the service fee, and for compiling required purchasing history. This report shall be sent to Eurchasin `kit ofdenton.corn on or by the tenth day of each month. The Contractor further agrees that the City of Denton shall have the right, upon reasonable written notice, to review the Contractor's records pertaining to purchases under this awarded contract to verify the accuracy of service fees charged to the Contractor. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 Exhibit 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 only when the City actually receives and accepts the deliverables. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract. The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. Environmental Protection: The Respondent shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 el seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 el 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: RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of: i. delivery of defective or non - conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 negotiated. 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE/WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 28. 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, 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. 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class 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 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 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. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made - for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 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, RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified 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. RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 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 liq- ./ /ILNy�_v_.�IQ- gc)_v_ /�_v_hd /contracts /�br�.ht� and at the Wage Determinations web site w�y�_v_.w, of, �c�_v- for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on- site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government - owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the 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 RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP /Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions RFP 96025 DocuSign Envelope ID: D8D9E4AB- BFA4- 4D40- A18C- OFA6339B7731 EXHIBIT 3 Exhibit D 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 : htt s: / /w�vw.ethics.state.tx.a s /whatsnew /eif info fC>rm 1295.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 1?j �J Ciz cityofde ton,c om 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. RFP 96025 E z 0 cr -0 < r) E t Z O. U— w C? m w O r) 00 r) 0 0 CL 0 w c 4t 0 r) 0 0 o6 ui ll� 1 11; — - u� 11 - ll 16 4 u� 6 Im 6 - 6 — — 6 — — 4 6 — — 4 — Im - - 11 - - - 2 2 > > w 0 0 wf 0 0 0 .0 o .0 00 2 2 z 0 I 0 0 0 . z z z 0 mi9i z X x� x� m x x x I lw 61 71 71 vl 71 71 7 71 7 71 7 71 vi in vi in 0 0 0 vi O uz > > z 0 z z z z z o < < < w o I I 0 1 0 o o 0 0 0 It z¢ z Q m m 0 0 0 z z z 0 z Ix z x lo 0 u x N, 0 I x . M N, z z 2 z z N 1. -w 3: 0 2 1 . u 10 o u, 0 w 0 U m u < 0 O 1 z z O U , 6 -0, 2 2 6 w -X � 1 0 . 2 0 2 0 o o o o w U 0 0 z Z Z Z Z z -U I 0 z z z z O 0 1 1 < < 0 0 U: U) u 0 w P > 1 10 m p 0 m m g - 0 z F- x ;�c It 1 0 0 -0 -0 -0 -0 -0 -0 -0 0- 1? , , tx 0 < 10 m CL 0 ;; z 0 w 0 F- < F- u ch Im 6 -m 6 Lb 8 8 w 8 s 8 s z 9— Z Q z Q F- z 0 E w U) w w 0 0 DocuSign Envelope ID: D8D9E4AB-BFA4-4D40-A18C-OFA6339B7731 FaMMIT3 City of Denton RF,P for Supply of Fire Departimrit Uniforms ATTACHMENT Ea- CONFLICT OF INTEREST QUESTIONNAIRE . ................. . . ............... . .......... CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vengor or other ng itV business with local governmental ent This questionnaire reflects changes made to the law by H.M 23, 84th Leg, Regular Session, .... . .......... This questionnaire is being filed in accordance with Chapter 176, Locai 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 cornrnits art 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 as business relationship with local governmental entity. . ..................... .................... Check, this box if you are filing an tiodate to a previously filed questionnaire. (The law requires that you file an updated completed qUeSdOnllaife With the appropriate fifing authority not later than the 711 business dray alter tile �j danteEoEnL]N�v�liicl ou became aware H Narric of local government officer about whom the information in this section is being disclosed, Name of Officer This section, (item 3 including subparts A, B, C & D), rnust be completed for each officer with whom the vendor has an enilfloyment or other business relationship as defined by Section Local Government Code. Attach additional pages to this Forni CIQ as necessary. A, is the local government officer named in this section receiving or likety to receive taxable income, other than investment income, from tile vendor? 71 El Yes L_J No 13. Is the vendor receiving or iikeiy to receive taxable hiconie, other than investment incorne, from or at the direction of tine local govemment officer named in this section AND the taxable incorne is not received froni the local governmental entity'? r___71 F-1 Yes L_J No C. Is the filer ofthis questionnaire employed by a corporation or other business entity with respect to which the local governnient officer serves as an ollicer or director, or holds an ownership of one percent or more? E] Yes EDNo D. Describe each employment or business and family relationship with the local: government officer named in this section, 4 I have no Conflict of Interest to disclose, _ '117/1 /1 Signature o °ndor doing business with the governniental entity Date ...... ...... ...... RFP #6025 - Main Document Page 18 of 19 Certificate Of Completion Envelope Id: D8D9E4ABBFA44D40A18COFA6339B7731 Subject: Please DocuSign: Contract Documents - RFP 6025 Source Envelope: Document Pages: 27 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC- 08:00) Pacific Time (US & Canada) Record Tracking Status: Original 2/23/2016 1:03:19 PM Signer Events Cindy Alonzo cynthia.alonzo @cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered ID: Chris Watson Chris @gycuniforms.com Principal Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 2/23/2016 1:14:45 PM ID: 789f48b7- ff6d- 4ba4- 93c8- 8ecf0626bee8 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 Winkley julia.winkley @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: Cindy Alonzo Cynthia.Alonzo @cityofdenton.com Signature Completed ete Using IP Address: 129.120.6.150 ��I�.VtS (QV, M146329F.�41Arig_ Using IP Address: 47.51.199.38 D—Sbo..d by: C82 $1,YNC2A2S439 Using IP Address: 129.120.6.150 Dow,.._ :. SeCUk4b Status: Sent Envelope Originator: Cindy Alonzo Cynthia.Alonzo @cityofdenton.com I P Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 2/23/2016 1:11:07 PM Viewed: 2/23/2016 1:11:29 PM Signed: 2/23/2016 1:14:13 PM Sent: 2/23/2016 1:14:15 PM Viewed: 2/23/2016 1:14:45 PM Signed: 2/23/2016 1:19:34 PM Sent: 2/23/2016 1:19:38 PM Viewed: 2/23/2016 2:21:42 PM Signed: 2/23/2016 2:21:56 PM Sent: 2/23/2016 2:21:58 PM Viewed: 2/24/2016 6:30:17 AM EXHIBIT 3 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 ❑erson Signer Events Signature Timestamp Editor ❑eliver❑ Events Status Timestamp ❑gent ❑eliver❑ Events Status Timestamp Cntermediar❑ ❑eliver❑ Events Status Timestamp Certified [lei iver ❑Events Status Timestamp Caron Cop[] Events Status Timestamp Julia Winkley Sent: 2/23/2016 1:19:36 PM julia.winkley @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: 2/23/2016 1:19:36 PM sherri.thurman @cityofdenton.com COPIED 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: Allison Carlwicz Allison. Carlwicz@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 3 Caron Cop[] 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: ❑otar❑ Events Timestamp Envelope Summar❑ Events Status Timestamps Envelope Sent Hashed /Encrypted 2/23/2016 2:21:59 PM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 2:25:38 PM Parties agreed to: Chris Watson, 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. 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By checking the 'I Agree' box, I confirm that: • I can access and read this Electronic CONSENT TO ELECTRONIC RECEIPT OF ELECTRONIC RECORD AND SIGNATURE DISCLOSURES document; and • I can print on paper the disclosure or save or send the disclosure to a place where I can print it, for future reference and access; and • Until or unless I notify City of Denton as described above, I consent to receive from exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to me by City of Denton during the course of my relationship with you. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -295, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a "Sponsored Research Agreement" by and between the City of Denton, Texas and Southern Methodist University providing for the investigation of enhanced methane generation in the bioreactor landfill facility at the City of Denton, Texas in the not -to- exceed amount of $169,655; providing for the expenditure of funds therefor; providing for an effective date (File 6072). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION This Sponsored Research Agreement will allow Southern Methodist University (SMU) Civil and Environmental Engineering Department staff to conduct research associated with maximizing the methane production efficiency at the City of Denton landfill. The SMU research staff will recommend fundamental improvements in the conversion of solid waste compounds to methane gas, along with maintaining uniform methane gas migration within the landfill cell. There will be an emphasis on incorporating biopolymer salt and /or concentrate within the pilot bioreactor cell area. The biopolymer compound has been proven to enhance the rates of decomposition of waste materials, thereby increasing the rates of microbial waste conversion to methane gas. SMU's research effort will address the efficiency of this process through the management of the key components- waste, liquids, soils, and biopolymer. The staff will assist in analyzing the results determined from the biological, chemical, and physical reactions. The SMU research hypothesis is that biopolymer film, when amended with landfill soils, will maintain the maximum moisture content within the soils, significantly enhancing the carbon and nutrient uptake efficiency of the microbial species, therefore resulting in higher efficiency of the solid waste conversion to methane gas. In maximizing the waste decomposition, the methane gas is simultaneously maximized, causing the waste pack to decompose at a more rapid rate and providing for additional air space capacity for waste disposal. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On February 22, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -295, Version: 1 RECOMMENDATION Approve a "Sponsored Research Agreement" with Southern Methodist University for the investigation of enhanced methane generation in the bioreactor landfill facility in the not -to- exceed amount of $169,655. PRINCIPAL PLACE OF BUSINESS Southern Methodist University Dallas, TX ESTIMATED SCHEDULE OF PROJECT This is a two (2) year project that will begin on June 1, 2016 with an estimated completion date of May 31, 2018. FISCAL INFORMATION The services to be performed under this agreement will be funded from Solid Waste Capital Project Fund account 660881595.1360.30100. Requisition 4128155 has been entered in the Purchasing software system for the first year amount of $83,850. 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: 1.6 Collaborate with local, regional, state, and federal partners EXHIBITS Exhibit l: Public Utilities Board Minutes Exhibit 2: Ordinance Exhibit 3: Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 2 of 2 Printed on 2/26/2016 EXHIBIT 1 1 DRAFT MINUTES 2 PUBLIC UTILITIES BOARD 3 February 22, 2016 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is 6 present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on 7 Monday, February 22, 2016 at 9:01 a.m. in the Service Center Training Room at the City of 8 Denton Service Center, 901 A Texas Street, Denton, Texas. 9 10 Present: Chair Randy Robinson, Vice Chair Phil Gallivan, Charles Jackson, 11 Barbara Russell, and Brendan Carroll 12 13 Absent: Susan Parker and Lilia Bynum 14 15 Ex Officio Members: George Campbell, City Manager; Howard Martin, ACM Utilities 16 17 OPEN MEETING 18 19 CONSENT AGENDA 20 21 B. PUB16 -030 - Consider recommending approval of a Sponsored Research Agreement by and 22 between the City of Denton, Texas and Southern Methodist University providing for the 23 investigation of enhanced methane generation in the bioreactor landfill facility at the City of 24 Denton, Texas, in an amount not -to- exceed $169,655; providing for the expenditure of funds 25 therefor. 26 27 Pulled for questions by Board Member Carroll. Carroll asked for further information on this 28 item. Kemler answered it is a slow process to produce methane. The City of Denton is one of 29 two landfills in the State of Texas that received approval to enhance the production using a basic 30 addition of water. This will increase the production for use and the gas collection system 31 collects the gas. Staff wants to use up all the organic waste as fast as possible so that we gain air 32 space and better control emissions. SMU has a working relationship with the US Corps of 33 Engineers research laboratory. This is a good investment for short turn return and reduce 34 environmental risks. Carroll asked how soon should we expect their work to start producing 35 results. Kemler answered within 12 months. Russell added that she would like to see this 36 money spent in Denton, could UNT or TWU do this same kind of work. Kemler answered UNT 37 was trying to add an Environmental Science Program on the engineering side not policy. Before 38 it went to the state, the program was cancelled. They do not have anyone with the expertise and 39 are not capable at this point. Gallivan asked if the UTA contract is different and does not 40 compliment this contract. Kemler answered no, it is separate. 41 42 There was a motion by Board Member Russell to approve this item and a second by Board 43 Member Carroll. Vote 5 -0 approved. 44 45 Adjournment 10:53 a.m. EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A "SPONSORED RESEARCH AGREEMENT" BY AND BETWEEN THE CITY OF DENTON, TEXAS AND SOUTHERN METHODIST UNIVERSITY PROVIDING FOR THE INVESTIGATION OF ENHANCED METHANE GENERATION IN THE BIOREACTOR LANDFILL FACILITY AT THE CITY OF DENTON, TEXAS IN THE NOT -TO- EXCEED AMOUNT OF $169,655; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Solid Waste Department of the City of Denton, Texas and Southern Methodist University have discussed and collaborated, and have proposed that a "Sponsored Research Agreement" (hereafter the "Agreement ") be entered into by and between the City of Denton, Texas and Southern Methodist University which investigates and researches the enhanced methane generation in the bioreactor landfill facility at the City of Denton, Texas; and WHEREAS, the Public Utilities Board considered the "Sponsored Research Agreement" at its open public meeting of February 22, 2016, and approved said Agreement by a vote of for, to against; thereby recommending said Agreement to the City Council; WHEREAS, the City Council then reviewed, considered and approved said Agreement as beneficial to the City and its citizens; NOW THEREFOR THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute and deliver the "Sponsored Research Agreement" by and between the City of Denton, Texas and Southern Methodist University (hereafter the "Agreement "), and the City Manager is hereby authorized to make the expenditures provided for in said Agreement; a copy of said Agreement is attached hereto in substantially the form as Exhibit "A" and is incorporated herewith by reference. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. CHRIS WATTS, MAYOR EXHIBIT 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: EXHIBIT SPONSORED RESEARCH AGREEMENT TH|B SPONSORED RESEAKCHAGRf:EMBN'I'(*'Agreeinetit"), ef!"ective asmfthulatustdatewet forth on the signature page to this /\Breenneu1 ("Effective Date"), is by and between the City of Denton, 'Texas, u Texas munioipm| corporation duly organized and validly existing under the laws ofthc State of Texas ("Sponsor"), vvhmac address is 215 East McKinney Street, Denton, Texas 76201, and Southern Methodist University, u Texas non-profit corporation ("University"), "/hose address is 6425 13ouz Lane, Dallas, Texas 752O5. WHE.REAS,|he researcbprograrn contemplated by this Agreement imof mutual interest and benefit to University and k` Sponsor, will fudbc,|hc instructional and research objectives ofUniversity ioxmanner consistent with its status as a non-profit, tax-exempt, educational corporation and may derive benefits for both Sponsor and University through authorship, inventions, improvements, and/or discoveries; NO\V,lUE8L[|OR6,incmnskiucuiionofdhcpronimcaundnou1ua|covcnuntaheocincmnkdocd,U`u parties hereto agree to the following: Article I Definitions iog(cnnm shall have the following meanings: Ll "Contract Period" is fora period of two (2) years from June L 2016 dbroomk May 3L 20 1.2 "Joint Intellectual Property" shall mean, individually and collectively, all original works of authorship, inventions,improvements and/or discoveries which are conceived and/or made ( ' i).jointly by one or more employees of University and by one or more employees of Sponsor in performance of Project or (ii) by one or more employees of Sponsor involving use of funds, space or facilities ofthe University in performance of Project. The University does riot provide ft)r use of its funds, space or facilities by non- University personnel and it is not expected that any employees ofSponsor will use funds, space or facilities of the University. Any such arrangement requires prior approval of the Associate Vice President for Research and Dean of Graduate Studies, which may be withheld in his sole discretion. 1.3 "Principal Investigator" means Dr. Sevioc Sengor, Assistant Professor o[the University. L4 "P,oeo" shall muun the research project described iu Appendix /t,bobe performed under the direction of the Principal Investigator, Anything in this Agreement to the 000ioxry notwithstanding, Sponsor and University may at any time amend Project by mutual written agreement. 1.5 "University Intellectual " shall mean individually and collectively all original works ofaLlthorship, inventions, improvements and/or discoveries which are conceived and/or made by one or more employees of University in performance of Project. STANDARD SPONSORED RESEARCH AGREEMENT Page July 2014 EXHIBIT 3 Article 2 Research Work 2.1 University shall commence the perl'orniance of Protect promptly after the effective (late of this Agreernern, and shall rise reasonable efforts to perform such Project substantially in accordance with the terms and conditions of this Agreement. 2.2 In the event that the Principal Investigator becomes unable or unwilling to continue Project, and a mutually acceptable substitute is riot available, 1-hriversity and/or Sponsor shall have the option to terminate the Project. 2.3 Sponsor agrees that University's primary mission is education and advancement of knowledge and the Project will be designed to carry Out that mission. The manner of performance oil' tile Project shall be determined solely by the Principal Investigator. University does not guarantee specific results. Any and all information, materials, services, intellectual property and other property and rights granted and/or provided by University pursuant to this Agreement (including the deliverables), are granted and/or provided on an "as is" basis, UNIVERSITY MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER, AND ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING, ARE EXPRESSLY DISCLAIMED. 2.4 t) 11 i use of sponsor uonticter the performance of Related Ites ids and agrees that nothing in this Agreement interferes with the rch similar or related to the subject of the Project ("Related Research") ucted separately from the Project and does not involve the unauthorized illation. Sponsor further understands and agrees that nothing in this its to intellectual property that is conceived of or reduced to practice in ell. Article 3 & pos..and Conferences 3.1 Written program reports shall be provided periodically by University to Sponsor as set forth in Appendix A. 3.2 During the term of this Agreement, representatives of University will meet periodically with representatives of Sponsor at times and places mutually agreed upon to discuss the progress and results, as well as ongoing plans, or changes therein, of the Project. Article 4 Cc)sts,[3il1iii,�. and _()th(�r Su cart 4.1 It is agreed to and understood by the parties hereto that, subject to Article 2, total costs to Sponsor hereunder shall not exceed the sum of $169,655 , which shall include all expenses except for additional expenses not set forth in Appendix A attached hereto, which are independently authorized by Sponsor in writing. Payment shall be made by Sponsor according to the following schedule: 42 University shall retain title to any equipment purchased with funds provided by Sponsor under this Agreement; provided that any such equipment is not permanently affixed to Sponsor's realty. It is understood that if any such equipment is permanently affixed to Sponsor's realty, then SLIC11 equipment shall belong to Sponsor. STANDARD SPONSORF.17 RESEARCH AGREEMENT' Page 2 July 2014 EXHIBIT 4.3 University represents that dhas used its best efforts to determine the actual costs for conzylcLimn of' the Project, as set forth in Appendix A. 'Fhe Principal Investigator may transfer funds between P Jcc1budget|ineanithou1\hcphoruppn)vu|ofihcSponaorum|*ngaasuohtoonmh:odoom<huve an impact on the scope of the Prqject or in1odem: with its completion. Any fonds which Sponsor commits (o pay hereunder \w University for the Project vvbichroonoinuoexpendedupon|hccomp|e|ionmf1hcP jeci shall be accounted for and repaid to Sponsor within thirty (3O) days after completion of' the Project, or termination of this Agreement, v,hiuhevurevcnt ahu|| D,ar occur. 44 Anything herein to the contrary notwithstanding, in the event *f early termination of this Agreement hv Sponsor pursuant m Articles 2 and |0hereof*, Sponsor shall pay all costs accrued by University as of the date of termination, including non-cancellable obligations, which shall include all nor)- cancellable contracts and fellowships or postdoctoral associate appointments called for in Appendix A, which are disclosed iu writing ho Sponsor kv the University in advance, incurred prior 10 the effective date of termination, After termination, any obligation *[Sponsor for fellowships or postdoctoral ommooiu1cs hereunder shall end no later than the end ofDnivu,sity'uacademic acnncy<cr following the effective date of' Sponsor's termination of this Agreement, Article 5 Publicitv Sponsor will not use the name or any logos of' University, nor the name of any member of University's Prcject staff, in any publicity, advertising, or news release without the prior written approval of the President or Vice President for Development and [Aternal Affairs of the University ortheir respective designees, University shall have the right to acknowledge Sponsor as sponsor, the Principal Investigator, the nature af the research, and the dollar value of the award in normal University records and reports. Beyond that, University will not use the name or any logos of Sponsor, nor the name of any, employee of' Sponsor, in any publicity without the prior written approval of Sponsor. Article 6 6.-~^ in this Agreement to the contrary notwithstanding, any and all knowledge, know-how, practices, processes, and other information (hereinafter referred to as "Confidential Infiormation") disclosed or Submitted in writing or in othertangible forrn which is designated as Confidential Information, and labeled "Confidential", to either party by the other shall be received and maintained by the receiving party in strict confidence and sbu|i not be disclosed to any third party. |nfhnnu1ion disclosed orally will be "Confidential Information" if (a) the confidential nature of such information is identified at the time of'diss|omurc and (b) the confidential nature of such information is uooOonud in writing within five business days of oral disclosure. NciLbcz party mba|| use Confidential Information for any purpose other than those purposes specified in this Agreement. Thc parties may disclose Confidential ln[bnno(ion to their omnp|oyoca requiring acocxo tbcn:(o For the purposes ofthim Agreement; provided, hovvcvcc that prior to making any such disclosures each such employee shall be apprised ofthe duty and obligation to muio\uioConfidcutio|iofbnoatiouioconDdenccundnottuuuesuuhio[bnnu1ion[branypurpoaeo(hectbun in accordance with the terms and conditions of this Agreement, Neither party will bc held financially liable for any inadvertent disclosure, but each will agree to use its n:uownab|c efforts not todisclose any designated Confidential Information. 6�2 Nothing contained herein will in any way restrict w impair ekher party's right tome, disclose, or otherwise deal with any Confidential Information which at the time of its receipt: (u) Is generally available in the public domain, or thereafter becomes available to the public through no act of the receiving party; STANDARD SPONSORED RESEARCH AG0G6MENT Page3 July 20|4 EXHIBIT (b) Was independently known prior to receipt thereof, or made available 0o such receiving party amaomttcrof lawful right bvu third party; u1 Relates to potential hazards orcautionary warnings associated with performance of the Project; (d) Is required by government regulation, by law or by u mud of' competent ,jurisdiction no be dimo|macd, provided that the disclosing party is given xdeouu(u advance v«iUen notice to nl|nvv it to protest umuh disclosure; (c) 11as already been developed by the receiving party independently of tile disclosing party's confidential information; or <A Relates to or resulted From research programs or other activities that have been designated as "Fundamental Dcmeorch" under National Security Decision Directive 189 or otherwise approved in writing for publication by Sponsor. 6] 'file above obligations relating to Confidential |nknmotion yho|| be in effect for oerkx] of one (|) year from the termination o[thiaAgreement. Article 7 Publications Sponsor rccognins that under LIniversity policy, the results of Project must be publishable and agrees that Principal Investigator or researcher(s) engaged in Pr(Iject shall be permitted to present at symposia, national or regional professional meetings, and to publish in journals, theses or dissertations, or otherwise of their own choosing, methods and results of Project; provided, however, that Sponsor shall have been furnished copies of any proposed publication or presentation at least forty-five (45) days in advance of the submission of such proposed publication or presentation to a journal, editor, or other third party, solely for tile purpose of' allowing Sponsor to confirm that tile proposed publication will not compromise any of its Confidential Information or patent rights. Sponsor shall have thirty (30) days after receipt of said copies to object to such proposed presentation or proposed publication because there is patentable subject matter which needs protection and/or there is Confidential Information of Sponsor contained in the proposed publication or presentation, other than University Intellectual Property; In the event that Sponsor makes such objection, the parties shall negotiate all acceptable version and Principal Investigator and/or researcher(s) shall reftain from making such publication or presentation for a period of tirne to be agreed to by the parties, in order for University to file patent application(s) with tile United States Patent and Trademark Office and/or foreign patent office(s) directed to the patentable subject matter contained in the proposed publication or presentation, pursuant to Article 8. Article 8 U All rights and title to University ]nieUcc1ou| Property created eo|e|Y by the University under Project shall belong to University and shall be subject to the terms and conditions ofthia All Joint Intellectual Property ahu|| hc|oog jointly to University and Sponsor and shall be aubicu{ to the terms and conditions of th is Agreement. 82 University will promptly notify Sponsor of any University Intellectual Property or Joint Intellectual Property conceived and/or made during tile Contract Period under Project. Such disclosure is confidential, whether o, not labeled confidential. SMU may file patent applications u1 its own discretion and expense, or at the request of Sponsor at Sponsor's expense. If Sponsor c|ouia to license University Intellectual Property as provided in /tctio|e 9, Sponsor will pay for the costs of patent filing, prosecution and maintenance in the Nni1cd States and any foreign country. lf Sponsor directs that u patent application STANDARD SPONSORED RESEARCH AGK6BNBNT Page July 2014 EXHIBIT *r application for other intellectual property protection bc filed, University shall pnnontly prepare, file, and prosecute such O.S. and floreign application(s) in University's name. Sponsor shall cooperate with University to assure that such application(s) will cover, to the bsmi of Sponsor's knowledge, all kons of commercial interest and importance. VVbi|e University obo|\ he responsible for making decisions regarding scope and content mr application(s) to be G|cd and prosecution thereof, Sponsor shall be given an opportunity to review and provide input into the application. University shall keep Sponsor advised us10 all dcvc|opnncn|m with respect to much application(s) and shall promptly aupply to Sponsor copies of' all papers received and filed in connection with the prosecution thereof in mufficiootdnne fbr Sponsor to comment thereon. 83. All intellectual propedydcve|nncdoutskenf1him Agreement shall remain the property ofbmowner. Except usexplicitly provided in this Agreement, neither party receives ally right to the other's intellectual property developed Outside of this Agreement. Article Grant of Rights 9.1 L.Jiliversity grants Sponsor non-cxc|usive, license to University |ntc|leo\uu| Property for internal, non-uonunmruim| research purposes only. 9.2 provided that Sponsor has paid or is paying costa of' protection of into||cck'd property rights p ~ .3, UnivccsitYgronim Sponsor the option to elect the O»|\uving, by notice in writing to months after SMQ notifies Sponsor of creation of University |n\e||co{uu| For tair market value consideration determined at the time of a license agreement is signed, taking into account Sponsor's payment of intellectual property protection costs and the nature of the license, a royalty bearing, limited term exclusive license (sub . ect to third party rights, if any, and in a designated field of use) to make, have rnade, use and sell products embodying or produced through the use of such University Intellectual Property and Joint Intellectual Property with a right to sub] icense, oil terms and conditions to be mutually agreed upon. 'I'll is option to elect ail exclusive license is conditioned upon Sponsor's agreernent to diligently commercialize the University Intellectual Property or Joint Intellectual Property and to cause any products produced pursuant to this license that will be used or sold in the United States to be substantially rnanutactured in the United States. lf'Sponsordoes riot provide written notice of'dection to SMU within three months ol'a written disclosure under Paragraph 8.2, If Sponsor and SMU do riot enter into a license agreement within three months after Sponsor's election to proceed under, Paragraph 9.2, the Sponsor's rights under Paragraph 9.2 will expire and SMU has no further obligations to the Sponsor and may license the University ioie|}eoiva| Property to third parties. In the event that u license ia granted, the University retains uoou-cxo|uoivc license for internal, non-commercial or educational and research use, with u right to sublicense such use to other educational Article | |O.| ]bia Agreement shall become effective upon the date first hcreinabuve written and ybul continue in effect for the ffill duration of the Contract Period unless sooner terminated in accordance with the provisions of this /\dio|e. Tbe parties hereto may, however, extend the hcou of this Agreement for additional periods as desired Under mutually agreeable terms and conditions which the parties reduce to STANDARD SPONSORED RESEARCH &0K[BNENT Page July 2014 EXHIBIT writing and sign. F"khorpucty may terminate this Agreement upon ninety (9O) days' i written the other, with or without cause. |n the event that Sponsor terminates this Agreement prior <o the end of the term o[thio Agreement, for any ncusoo other than University's breach o[(him Agreement, Sponsor shall continue to be obligated to pay to University the urnouotm set fbdh in Article until the o|oao of the applicable semester. l02 In the event that either party hereto abu|| commit any breach of or default in any of the tern is or conditions of this Agreement, and also shall h/i) to remedy such default or breach within ninety (90) days after receipt n[written notice thereof from the other party hereto, the party giving notice mu}, at its option and in addition to any other remedies which it may have at |avv or in equity, terminate this Agreement by sending notice of termination in writing to the other party to such effect, and such termination shall bc effective aeofthe date of the receipt of such notice. 0.3 Subject WArticle 9, termination ofthim Agreement by either party for any reason shall not affect the hobto and obligations of' the parties accrued prior to the effective date *[termination of this A,recnncnL No termination of this Agreement, bowcvercOectuated, shall affect the Sponsor's rights and duties under Article 8 hereof', or release the parties hereto from their rights and obligations under Articles 4 (except us provided For herein iu Articles 42,4.3 and 4.4),5,6,7,0,A,)O(exccpt. am provided for inArticle fqndepenCent Contractor � services hereunder: (a) University shall be deerned to be and shall be an independent contractor and, as such, University shall not be entitled to any benefits applicable to employees of Sponsor; and (b) Sponsor shall be deemed to be and shall be an independent contractor and, as such, Sponsor shall not be entitled to any benefits applicable to employees ofUniversity. (c) Neither party is authorized or empowered to act as agent for the other for any purpose and shall not on behalf ofthe other enter into my contract, warranty, or representation as to any matter. Neither shall be bound by the acts or conduct of the other. Article 12 Force MM*etirc In the event of.'ui#umstances beyond the reasonable control ofeitherm both parties, including but not limited io proven illness of Principal Investigator, riots, strikes, Acts o[ God, or the exercise ofuuth i of either the federal or state governments or any political subdivision thereof, which prevent the performance of the obligations mf{bia Agreement by either party, this Agreement may be modified by mutual consent of the parties or shall otherwise becoonc null and void. Article 13 NimAgreement shall be governed and construed inaccordance with the laws ofthe State of'T'exas and the United States of America. Tbim Agreement shall he deemed fully performable in Ch||ao County, 8io1e of fexas, United States of America. STANDARD SPONSORED RESEARCH AGR6BNBNT Page July 2014 EXHIBIT Article 14 i This Agreement sbu|notbs assigned 6v either without the prior written consent ofthc parties hereto. Ally unauthorized assignment shall ocum' and void. Age e�plejq_Mod.jj'tcatiqp Any agreement to change the ternis of this in any way shall bcvalid only ifdechange is made in writing and approved by mutual agreement m/ authorized representatives "`".e parties hereto. Article 16 University and Sponsor shall not be liable to the other or to any third party for any reason whatsoever misi'go-- o[mmhdrgLothis Agreement (including any breach u[tbia Agreement) for loss o[ profits m for incidental, indirect, special occonsequential damages, even J either party hereto has been advised of the possibility of such damages or has or gains knowledge of the existence of such damages. IT IS THE EXPRESSED INTENT OF UNIVERSITY AND SPONSOR THAT RESEARCH IS PROVIDED "AS 0 AND THE SPONSOR IS RESPONSIBLE FOR THE USE OF THE RESULTS OF TRE'RESEARCH EVEN TO THE EXTENT DAMAGE OR HARM IS ALLEGED TO 'BE CAUSED, IN WHOLE OR IN PART, BY THE SOLE OR CONCURRENT NEGLIGENCE OF THE UNIVERSITY, ITS TRUSTEES, OFFICERS9 EMPLOYEES, VOLUNTEERS, STUDENTS OR AGENTS. Article 17 ` Miscellaneous Provisions '| .lNotices, invoices, communications, and payments nent hereunder shall be deemed made if given ,y registered or certified \J . S� uui| ,pm �p` and addressed \othe party to receive audcc,iuvniuc,oruun unico1ionu1thcaddremagivenbe|*v,ovymohothcruddruweuanoyhereaher bc designated by notice inwriting: Sponsor: General Solid Waste Department |527 South KJuybU|Road Denton, Texua762O8 and City Manager 2l5 Fast McKinney Street Denton City flail I)cnton,l[exae7620\ University: KutbleenFun Director of Sponsored Proccts Southern Methodist University P.O. Box 750302 0n||ua,Texus 75275-0302 STANDARD SPONSORED RESEARCH A@0CBN6N[ Page July 2014 EXHIBIT Tedhnicu|MaU#/s: S.ScvincScngor Assistant Professor Civil and Environmental Engineering l3*bkvR. Lyle School o[Cngiouering Southern h4cdhodim1 University P()0ox,75034O 0u||ms,]-X7527S Ie|:(2l4)'768-3|l0 |72 �* signing this Sponsor mcdUiusthat Sponsor is not delinquent on ony federal debt, debt, aod neither the Sponsor, nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded knno covered transactions hv any United States govern unuo1m| department oragency. 17.3 Sponsor shall be mo\c)y responsible for obtaining any and all clearances and permits which are required by the treaties, laws, and regulations of the United States in tbe event the kuonfbr of the hardware, sobwarc and/or technology (collectively, the ^"l1unna") which are the subieot of this Agreement from University to Sponsor, pr|iom Sponsor to aU/ind party is subject to the International l[roffic in /\nos regulations, (ll[/\K, 22 CFRChmpier |, Subchapter M, Parts l2U-|3O), Export Administration Regulations (E/\K, l5C[F( Chapter VII, SubohupturC, Parts 73O- 774), Office of Foreign &aoetm Control Regulations (O[/\C, 31 CFR Pmde 500 through 599), &mmim1unoe Foreign to i Activities Regulations (lU CF0 Part 810) and any other federal laws and regulations, regarding the export of such Iterils from the United States Because SMU is all institution of higher education and has many students, facility, staff and visitors who are foreign persons, SMU intends to conduct the Pro.jecl: as 'fundamental research Linder the export regulations, so that the results generated by SMU qualify as "public domain" tinder 11'AR Parts 120. 1 O(a) (5) and 120.11 or "publicly available" Sponsor will not knowingly disclose and will use cornmercially reasonable efforts to prevent disclosure to SMU of any technology or software source code controlled under the FI'AR, the Commerce Control List (EAR Part 774 and Supplements) or 10 CFR Part 810 Restricted Data or Sensitive Nuclear'fechnology. If for purposes of the Prqject, Sponsor intends to disclose export-controlled information to SMU, Sponsor will not disclose such, inforniation to SMU unless and until a plan for transfer, use, dissemination and control of the information has been approved by SMU. In the event Sponsor inadvertently (i) discloses export-controlled information or (d) breaches the obligations set forth in this Paragraph 16.3, any deadlines contemplated by the statement of work will be ad.jUsted based oil the time it takes to address the disclosure. Sponsor agrees 10 indemnify, defend, and hold hunn|cas University, its trustees, officers, employees, o\udents, volunteers, agents, and representatives, including the Principal Investigator and ccsoucohcds>, to the extent provided by applicable |uv/, against all claims, suits, udnuinim1o1ivc actions, Guce, penalties, and damages assessed or made against any of the parties hereby released as the result of Sponsor's intentional or negligent acts *romnimainna n:|u1cd to the failure 1ocomply with export control laws and regulations or other local, state orO.S. federal laws. Tbe parties agree 10 advise each other promptly ofthe existence of any clairns tuade against University which Sponsor has agreed to indemnify herein. 17.4 Severability. If any provision m[ this Agreement is determined to he invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect. 17.5 Conflict of Interest. Except aaset forth herein, Sponsor represents and warrants that no �rustee,ofGcer, employee, Student or agent of University has been or will be employed, retained, or paid a fee, or otherwise has received or will receive any personal compensation or consideration by or from STANDARD SPONSORED KCS£ARCHAGREEMENT Page July 2014 EXHIBIT Sponsor or any of Sponsor's directors, officers, employees, or agents in connection with the obtaining, arranging, or negotiation nrdhiyAgrecnncn1. 176 fleadii . Paragraph headings are for reference and convenience only and shall not be determinative of the meaning or the interpretation of the language of this Agreement. 17.7 . This Agreement, including all appendices and exhibits, constitutes the entire agreement between Sponsor and University wi1hreapcutk`dhe SxbJcct matter hereof and cancels and supersedes any prior understandings and agreements with respect to the SUbJect of this Agreement. 17.0 Waiver, No waiver of any breach ofany provision ofthis Agreement shall operate omu waiver of any other or subsequent breach thereofor of the provision itself, or ofany other provision. No provision of this Agreement shall bedecrncd1ohave been waived uo|cmo such waiver im in writing and signed by the party waiving the aarne, with the signature on behalf of University being that of vice president ofUniversity. 179 Autho it 'fbeindUviduu|o executing this Agreement of) behalf of the parties hereby represent and warrant that they have full power and authority mexecute this Agreement oil bche|fof the institution they are representing. Thc approving authority off behalf* ofthe Sponsor isthe City Council ofthe City of Denton, Tcxua acting by and through its City Manager. Tbia Agreement and any amendment hereto may be executed in counterpade and all such counterparts taken together will be dccmcdto constitute on�omdthe yuoe instrument. If this /�aruerneu1 is executed in counterparts, 110 signatory ' bound until all the parties named below have du|y executed u Counterpart ofthis IN WI'I'NESS WIJEREOF, the parties have caused these presents to be executed in triplicate originals as of the day and year first above written. Name: George C. Campbell Title: City Manager Date: JENNIFER WA[[ERS,C|TY SECRETARY By: BURGESS, C|TYAlT0RNBY STANDARD SPONSORED RES6AKCHAGREEMENT Page July 2014 EXHIBIT 3 "LJN1W1'RSFFY" SOLYFFIFIAN MFF1l1ODlS'FUN1V`RS1'l'Y ------ - - -- ----- Kathleen Furr Director, Sponsored Projects Date:- 2 flip PRINCIPAL, INVES'11GA'FOR STANDARD SPONSORF'D RE,SEARCH AGREEMENT Page 10 July 2014 EXHIBIT 3 APPENDIX A BUDGE) AND S'I'A'I'EMI..,N ]'OF WORK STANDARD SPONSORED RFISEARCF1 AGRFTMENT Page I I July 2014 EXHIBIT 3 Proposal Budget PI: Sevinc Sengor SMU# 143533 Period: 06/01/2016 - 05/3112018 Agency: City of Denton MSW Facility FINAL 02/08/2016 Acct Description Year 1 Year 2 Total 6112 Full-Time Faculty Extra Comp (summer) Y1 - Sengor @ 0.1 summer month 1,047 1,078 2,125 6165 Graduate Research Assistant 21,600 22,248 43,848 1 @ $1,800 for 12 mans TOTAL SALARIES 22,647 23,326 45,973 6201 Emp. Ben. FT Faculty 26.1% 273 286 559 6210 Tuition Remisison 32% 6,912 7,119 14,031 TOTAL EMPLOYEE BENEFITS 7,185 7,405 14,590 TOTAL SALARIES & BENEFITS 29,832 30,731 60,563 6330 Lab Supplies 17,000 15,000 32,000 6600 Domestic Travel 0 1,500 1,500 6615 Conference & Seminar Registration 0 500 500 7500 G&C Subcontract/Conslt 1 $25k (ERDC) 23,144 1,856 25,000 7501 G&C Subcontract/Conslt 1 > $25k (ERDC) 0 22,028 22,028 8240 Capital Equipment * 0 0 0 TOTAL OTHER DIRECT COSTS 40,144 40,884 81,028 TOTAL DIRECT COSTS 69,976 71,615 141,591 MODIFIED TOTAL DIRECT COSTS- (BASE) 63,064 64,496 127,560 7600 On Cam us F&A 2% allowed b a enc 13,874 14,189 28,063 TOTAL DIRECT & INDIRECT COSTS FOR SMU 98,670 100,961 199,631 * MTDC = Total Direct Costs, less GRA Benefits, Stipends, Equipment, Rental Equip, and amounts greater than the first $25,000 of each sub-contract. EXHIBIT 3 SCOPE OF WORK Title: Investigation of Enhanced Methane Generation in the Bioreactor Landfill Facility at the City of Denton Institution: Southern Methodist University (SMU) Department: Civil and Environmental Engineering Principle Investigator: S. Sevinc Sengor, 1'h.1.7 (�, p L q) (SM � �- qq! , U g � ) Collaborators: Andy Martin, Ph.D, P.E. Patrick Delinian, Ph.D QlAt�rick.N.DelimW and Steve Larson, Ph.D. ('Lt e v e n. o rl �t�e n.mil) (U.S. Army Corps or Engineers (USACE), Engineer Research and Development Center, Environmental Laboratory (E ,"RDC-EL)) USACE Environmental Laboratory 3909 Galls Ferry Road Vicksburg, Mississippi 39180-6199 EXHIBIT 3 SCOPE OF WORK M= The City of Denton Landfill at ECO-W.E.R.C.S. is aType I Landfill receiving municipal solid waste (MSW), where a portion of the waste is recycled, composted and converted to energy, The current capacity of the electric generator at the facility is 1.6 megawatts, powering the equivalent of approximately 1,600 homes per year. Landfill gas is the natural by-product of the microbial decomposition of the solid waste in landfills and is comprised primarily of carbon dioxide and methane. "I'he main objective of this work is to maximize the methane production efficiency at the landfill facility at the City of Denton, TX. The focus of this project is to provide fundamental improvements in the conversion of the solid waste compounds to methane gas along with maintaining uniform methane gas migration through the cells at the site, Emphasis will be particularly placed on the incorporation of a biopolymer, (which will be obtained from U.S. Army Engineer Research and Development Center, Environmental Laboratory (ERDC-El.)) within the pilot bioreactor landfill that is to be constructed at the ECO-W.E.R.C.S. facility. Biopolymer compounds produced by Rhiz()bia sp. have been tested and proved to be effective especially with regards to (i) enhanced water retention in the matrix, and (ii) enhanced microbial nutrient uptake efficiency in the matrix, which are the main factors affecting methane gas generation. Thus, the impact of biopolymer addition will be in an acceleration of the landfilled waste biodegradation, which will then enhance landfill methane gas generation. Apart from the biopolymer amendment of the pilot bioreactor cell soils, further alternatives will be sought to accelerate waste degradation for a further increase in methane generation. The proposed research effort will investigate the above items as a result of an extensive integrated experimental-and- modeling analysis of key species involved in the biological and chemical reactions of concern. The quantitative synthesis of these processes will thus provitte the contlilionsfin- maximum methane generation and the oplitnum conditions to maintain unffi)rm methane gas migration at the site. The results obtained at each stage of the above proposed approach will be discussed by the City of Denton, 'rx, msw Landfill authority and project partners at ERDC-EL. The experimental plan can be revised as seen necessary by the landfill authority. SMU will develop lists of action items needed following each project coordination meeting and distribute the items as well as the results of the analysis to the project personnel. IN EXHIBIT 3 1. Introduction and Background: The City of Denton Landfill at ECO-W.E.R.C.S. is aType I Landfill which receives MSW and has a unique liner system designed to protect groundwater. Waste going into the Landfill is compacted and covered with dirt. In 2008, the t,andfill at ECO-W.FLR.C.S. installed a landfill gas collection system to collect and use landfill gas as a green energy source. Currently, there are 73 vertical wells and 34 horizontal collection lines. 'Fhe system covers the entire 63-acres of current waste in place. The collected gas is directed to an electric power generator on-site which is connected to the Denton Municipal Utilities electric grid. The current capacity of the electric generator is 1.6 megawatts, powering the equivalent of approximately 1,600 homes per year. The electric power station was designed for expansion as methane gas production increases (City of Denton, MSW, 2014). In 2009, the f,andfill at ECO-W.E.R.C.S. received approval from the :Texas Commission on Environmental Quality (TCEQ) for the recirculation of leachate and storm water to increase landfill gas production. Leachate is water that trickles down through the waste pack to the bottom liner. A leachate collection system pumps leachate back to the upper levels of the waste pack. This process speeds up the decomposition of waste which increases methane gas production and recovery. The addition of the enhanced leachate recirculation system will allow the area to be reused for new trash and start the process over again when thewastehas been completely decomposed. 'This unique effort to Litilize methane emissions provides significant energy, economic and environmental benefits (City of Denton, MSW, 2014). Landfill gas is produced as a byproduct of anaerobic biodegradation of organic materials in landfills. Landfill gas generation is a biological process where microorganisms decompose the organic waste within the landfill to produce carbon dioxide, methane, hydrogen Sulfide and other gases (Manzur, 2010). Landfill gas is composed of a mixture of various gases which typically contains about 45 - 60 % methane, 40 - 60% carbon dioxide as well as trace amounts of nitrogen, oxygen, ammonia, sulfides, hydrogen, carbon monoxide and non-methane organic compounds (NMOCs) such as trichloroethylene, benzene, and vinyl chloride (NISDR, 2001). Table I shows the main compounds and their average concentrations in a typical landfill gas generated from anaerobic biodegradation (US DOE, 1996). I I i I i C 11C) I 10 Q A Com ound Methane (0114) Average concentration 50 Carbon dioxide (CO2) 45 5 _Nitrogen Flydro� sulfide - (1-12S) Non-methane_p1gartic compound (NMOCs) <1 2700 ppin, After the MSW is landfilled, the organic components are decomposed in the presence of microorganisms mainly in f(Air phases. 'The composition of the gas produced changes with each of the four phases of decomposition. .Phase 1: During the first phase of decomposition, aerobic bacteria (i.e., bacteria that live only in the presence of oxygen) consume oxygen while breaking down the organic waste that consists of long molecular chains of complex carbohydrates, proteins and lipids. 'The primary products of I EXHIBIT 3 this phase are carbon dioxide and shorter carbon chain compounds. '['his phase continues until all the available oxygen is depleted by the aerobic bacteria. Phase 11: During the second phase, anaerobic bacteria (i.e., bacteria that do not live in the presence of oxygen) convert the compounds produced by the aerobic bacteria during phase I into acetic, lactic, formic acids and alcohols such as methanol and ethanol: Acetogenesis: C6111206 0► 2C2145011 + 2CO2 The landfill becomes highly acidic. As the acids mix with the moisture present in the landfill, certain nutrients dissolve in the pore space increasing nitrogen and phosphorus concentrations for increasingly diverse species to be active. The primary products of this phase are carbon dioxide and hydrogen. Phase UL During Phase 111, certain kinds of anaerobic bacteria consume the organic acids produced by the acetogenic bacteria in Phase 11 to form methane and carbon dioxide: Methanogenesis: CI-t,;C001I " C17-14 + CO2 CO2 4- 41 -12 10 C1J4 + 2 1120 The maximum amount of methane or natural gas that may be generated during anaerobic decomposition of an organic waste (e.g. cellulose), can be shown by the reaction: C6111005 + 1]20 10 3CI-14 + 3002 C6111004 + 1.5 1120 o 3.25 C114 + 2.75 CO2 This reaction produces a very small amount of heat and the product gas contains about 54% methane and 46% carbon dioxide (Manzur, 2010). The methanogenic and acetogenic bacteria have a symbiotic (i.e., mutually beneficial) relationship, where the acetogenic bacteria produce the compounds for the methanogenic bacteria to consume, and methanogenic bacteria consume the carbon dioxide and acetate, too much ol'which would be toxic to the acetogenic bacteria (ATSDR, 2001). Phase IV: Phase IV starts when the composition and production rates of landfill gas remain relatively constant. This phase typically results in production of a gas that contains 45-60 % methane, 40-60 % carbon dioxide, and 2-9 % other gases, by volurne, such as sulfide products. A summary of` the waste decomposition phases and the corresponding amounts of gas composition is shown in Figure I below. EXHIBIT 3 Note: Phase duration time varies with landfill conditions Figure 1. Surntriary of the decomposition phases and gas components in a typical landfill (ATSDR, 2001). Factors Affecting Gas Generation: The amount of generated gas from a MSW landfill depends on several factors including the waste composition, moisture content, particle size, age of waste, pH, and temperature. Recently, leachate recirculation has been used to accelerate landfilled waste biodegradation to enhance landfill gas generation. Although first suggested in the mid 1970s (Pohland, 1975), the concept of operating a landfill as a bioreactor or enhanced leachate recirculation (ELR) landfill has recently received an increased attention (Pacey et al., 1999). An ELA landfill operation has been observed to enhance gas production, refuse decomposition, and waste stabilization. The influence of leachate recirculation at the City of Denton landfill tacility has been studied by Mansur et a]. (2010), where landfill gas generation and gas composition data were monitored for ten (10) individual lateral pipes 111 to f110. The results showed that the gas flow rate and composition at the site were highly affected by additional moisture intrusion into refuse mass in the form of recirculated leachate. This led to the enhancement of gas generation. These recirculated gas pipes resulted in a methane percentage (% C114) close to 60%, whereas the non-recirculating pipes provided around 45% ( Mansur, 2010). 9 Aerobic Anaerobic 10D Phase I Phase 11 Phase III Phase IV so 80 70 60 4"0% 50 40-60% 40 % AW 30 20 4P 10 .... ............ ..... 0 1 Note: Phase duration time varies with landfill conditions Figure 1. Surntriary of the decomposition phases and gas components in a typical landfill (ATSDR, 2001). Factors Affecting Gas Generation: The amount of generated gas from a MSW landfill depends on several factors including the waste composition, moisture content, particle size, age of waste, pH, and temperature. Recently, leachate recirculation has been used to accelerate landfilled waste biodegradation to enhance landfill gas generation. Although first suggested in the mid 1970s (Pohland, 1975), the concept of operating a landfill as a bioreactor or enhanced leachate recirculation (ELR) landfill has recently received an increased attention (Pacey et al., 1999). An ELA landfill operation has been observed to enhance gas production, refuse decomposition, and waste stabilization. The influence of leachate recirculation at the City of Denton landfill tacility has been studied by Mansur et a]. (2010), where landfill gas generation and gas composition data were monitored for ten (10) individual lateral pipes 111 to f110. The results showed that the gas flow rate and composition at the site were highly affected by additional moisture intrusion into refuse mass in the form of recirculated leachate. This led to the enhancement of gas generation. These recirculated gas pipes resulted in a methane percentage (% C114) close to 60%, whereas the non-recirculating pipes provided around 45% ( Mansur, 2010). 9 EXHIBIT 3 2. Objectives: The main objective of this study is to maximize the methane production efficiency at the landfill facility at the City of" Denton, TK This project is t'0CUsed to provide fundamental improvements in the conversion of the solid waste compounds to methane gas along with maintaining unifin-ni methane gas migration at the site. L,iyphasis will bzcj)ar1iculqrlv _laced on the incorporation oL(-1 biopolymer salt and /or concentrate, (which will be obtained through ER.DC-EL authority) within the pilot bioreactor landfill to be constructed at the Denton site. The biopolymer compound has been proven to enhance water retention in the soils, increase microbial carbon and nutrient uptake efficiency, and increase the rates of microbial waste conversion to methane gas. The proposed research effort will address the efficiency of the above items as a result of an extensive experimental analysis of the key biological and chernical reactions of concern. The overall hypothesis is that "the biopolymer film, when amended with landfill soils, will maintain the maximum moisture content within the soils, significantly enhancing the carbon and nutrient uptake efficiency of the microbial species, resulting in higher efficiency of solid waste conversion to methane gas". The hypothesis will be tested by performing the work plan consisting of the tasks and subtasks as described below. These include: 1) Laboratory experiments.f6r the determination ql'optimum % of biopolymer loading 2) Pilot scale bioreactor operation at the landfill, facility with amended biopolvnier compounds, The results obtained at each stage oil' the above proposed approach will be discussed by the City of Denton, TX, MSW landfill authority and prqject partners at ERDC-EL. The experimental plan can be revised as seen necessary by the landfill authority. SMU will develop lists of action items needed following each prQject coordination meeting and distribute them to the project personnel. Use of a Natural Biopolymer as an Amendment: A variety of bacterial species produce extracellular polymeric substances (named as EPS) which are localized at or outside the cell surface (Geesey, 1982; Castellane and Lemos, 2007; Monteiro et al., 2012; Mota et al., 2013; Radchenkova et al., 2013; Silvi, et al., 2013). An important function of EPS is that they can trop, bind, and concentrate organic materials in close proximity, to the cells. This facilitates the efficient uptake of hydrolysis products by reducing diffusion loss of products to the surrounding water (1-loffman and Decho, 1999; Wingender et al., 1999; Laspidou and Rittmann, 2002). Bacterial production of EPS has been studied and recognized as a cohesive force facilitating resistance against erosion in sediments ( ' Droppe 2009; Gerbersdorf et al., 2008a, 2008b; Larson et al., 2012) In the marine environments, it has been recognized as an important alternate route for organic carbon cycling (Bhaskar and Bhosle 2005). EPS has also been demonstrated to be promoting soil adhesion for several cyanobacteria in and environments (I lu et al., 2003). Among the bacteria that produce EPS, Rhi.-obia sp., has been reported to excrete large amounts of polysaccharides into the rhizosphere arid, when grown in pure cultures (Noel, 2009), produce abundant amounts of EPS, causing an increase in viscosity (Castellane et al., 2014). Due to its adhesive, water retention, and protective biofilm formation characteristics of the EPS produced by R. tropici, it has been investigated as a potential soil engineering agent (I..,arson et al., 2012). "The main characteristics of this biopolymer include: Surface adhesion, Water retention, M i- Nutrient accumulation in the soils. These results warrant the investigation cif the inil)(ict of biopol,viner potential to enhance water retention, (ii) enhance microbial carbon and nutrient ul,)take e in the landfill cells, which are the main /actors affecting methane as generation as dhs,cussedabove. Thus, the impact of biopolymer addition will be an acceleration in the landfilled waste biodegradation, which will then enhance the landfill methane gas generation. Larsen et al. (2012) provides a performance evaluation of this biopolymer film produced by R. trol)ici at pilot scale. R. tropici biopolymer film was used to coat seeds, where an increase in the germination rates with decreased water application was observed (Figure 2). When the soil was amended with 0.2 % biolpolyrner film, rate of establishment of vegetative cover was EXHIBIT 3 90 1 80 o 70 -1 40 60 50 40 30 20 10 0 Control 10 mg biopolymer 30 mg biopolymer Figure 2. Comparison of germination rate for control and biolpolymer coated seeds, when the 0.2 % biopolymer is amended in soil (from Larsen et al., 2012). 260— — Control 200 C 160 100 50 0 0 60 100 160 200 260 300 360 400 Time (hr) Figure 3. Comparison of soil water retention for control and biolpolyrner coated soil (from US Army Corp ofErigitieers, 2012). increased, which also required minimal application of water. It was also observed that the soil amended with biopolymer retained moisture for a longer time compared to the unarnended soil (Figure 3). This was also a contributing factor to increased establishment of vegetative cover in areas that were subjected to erosion. 4. Work Plan: The proposed research plan will be performed in two tasks as seen in Figure 4. The details are as described below: Task 1: Laboratory experiments for the determination of optimum % of biopolymer loading: 0 EXHIBIT 3 Prior to the implementation ol'pilot scale bioreactor experiment at the landfill facility, laboratory experiments will be conducted at SMU to determine the optimum % loading of the biopolymer to be used at the pilot bioreactor at the facility. For this purpose, a series of laboratory -scale columns will be constructed using 20 cm-diameter polyacrylic plastic pipe with a total height of 100 cm loaded with about 15 kg of solid waste sample in each column. The solid wastes will be amended with I - 5 % biopolymer Compound, resulting in a total of 6 columns including a biopolymer -free control. A leachate injection port and a gas collection port will be installed on the top of each column. A leachate collection port will be located at the bottom of each column for leachate collection. All columns will be operated in a thermostatic room (25 ± 5 _C) temperature for a few months. L,eachate collected from each column will be recirculated with a flow rate of 500 nil/day. Additional columns will also be tested to vary the recirculation flow rate, to determine if desired moisture content and solid waste decomposition can be achieved with lower flow rate of leachate circulation. Leachate, which will be collected for sampling from the leachate collection port, will be analyzed for pl 1, ('01), BOD5, and arnmonia-nitrogen. Major cations can be measured by ICI' -MS (Perkin Elmer 6100). Most anions can be determined by ion chromatography, alkalinity by titration, and DOC by high temperature combustion (ShimadZU). Eli and temperature will also be monitored. Anticipated results of 1his task will be the determination ref optinnim biopolymer % loading to be used in the plot scale bioreactor experiments, described in Task 2 below. Task 2a: Setup of pilot scale bioreactor experiment at the landfill facility: A pilot scale bioreactor experiment will be conducted at the landfill facility to mimic the waste decomposition process occurring at the landfill site. 'I"he pilot bioreactor will be constructed at the facility with 16-20 ft long, 12 ft high and 12 ft wide representative cell filled with the landfill material in 2 vertical layers, sloped at 1-2% (see Figure 4). The cell will be sealed and lined with a high density polyethylene material. The pilot cell will receive Municipal solid waste and will be adopted to have leachate recirculation system, similar to the main landfill cells operating at the � � Biopolyrner Amendinent Task 1. Laboratory 823EM Gas Collection Ltachate andliqWds addition experinients for the detennination of Uquids age optinatin % of biopolymer loading el Task 2. Pilot scale bioreactor operation at Ga's Coll I'd layer the laridfill, facility with amended biopolymer .ii 7 compounds 2ad layer ----------- ------------ - - -------- ------- Integration of results to public outreach and education activities __._.1__1 ----------- ------------------ ------------- --------------- Figure 4. Illustration of the project experimental design, pilot scale bioreactor experiment, and work plan proposed in this study 8 EXHIBIT 3 facility. The flow rate of the leachate, mass of the incoming solid waste, etc. will be adjusted to be representative of the main landfill cells. Interconnected horizontal pipes will be installed for gas collection and leachate recirculation purposes. L,eachate which will percolate through the pipes to the bottom of the 2"" layer will be collected to a storage tank and then will be resent back to different locations within the pilot cell using different pipes from the leachate storage tank. The collected gas (once every hour from various locations) will be analyzed for methane and CO2 concentrations, The hourly collected leachate at various locations will be analyzed for solution chemistry to obtain the concentrations of main dissolved ions in the solution. The pilot cell will operate until a steady state condition will be achieved. After collection, leachate samples will be refrigerated until the time of" analysis, which will always be carried out within 2 h frame from the time of collection. 'Fhe experiments will be conducted in duplicates. Major cations can be measured by 1CP-MS (Perkin Eimer 6100). Most anions can be determined by ion chromatography, alkalinity by titration, and DOC by high temperature combustion (Shimadzu). Eh and temperature will also be monitored. Task 2b: Pilot scale bioreactor operation with amended biop cal ymer compounds: Once the pilot cell operation reaches steady state conditions, both layers of the landfill will be amended with the biopolymer compound produced from Rhi-7obium tropici. 'The biopolymer salt will be obtained from ERDC,-EL in collaboration with Drs. Martin, Deliman, and Larson. The bacterial species can be stimulated to produce large quantities of this biopolymer that can be applied as a concentrate as an amendment. Once the biopolymer is separated from the growth media and extracted to produce a non-reactive (non-cross-linking) material, it can be transported to the landfill facility to apply at the pilot bioreactor cell. The biopolymer can be applied using one of the two methods. The first involves mixing the biopolymer concentrate with water at the site of use, producing a viscous liquid, or gel that is applied. The second method involves mixing the biopolymer, then applying water. Using either application method, when wetted, the biopolymer will form a gel within the MSW matrix. With the small particulates acting as a buffer, the ionic character of the biopolymer is neutralized and the biopolymer can begin reacting with itself and the constituents of the soil matrix as described in Larson et al., (2012). The amount of the biopolymer amendment that will be applied will be adjusted so that both layers of the pilot cell will be mixed well with the biopolymer compound. After about 3 weeks of process time, landfill gas will be collected (once every hour from various locations) to be analyzed for methane and CO2 concentrations. The hourly collected leachate samples at various locations will be analyzed for solution chemistry to obtain the concentrations of main dissolved ions in the solution, with the same procedure as obtained in Task 1. 'The results will be compared with the prior results obtained in 'Task 1. Anticipated results of this task will be a significant improvement in the e fficienc y o 'methane generation. The data obtained in this task will be further incorporated into a reactive transport model to predict the interactions of'microorganisms with nutrients leading to methane production along with the transport of methane in the pilot cell, as described below. The quantitative synthesis of these processes will also provide the insights,lbr optimum conditions to maintain uniform methane gas mi� ralion at the pilot reactor. The model results will also be used to test hypothesis for further experimentation for Task 2, where the experimental set-Lip, sampling points, frequencies of sampling and analysis may be revised as deemed necessary to ensure the best set of conditions are implemented at the reactor. 9 EXHIBIT 3 5. Schedule of tasks: The Gantt chart below describes the anticipated timing of the research with the associated tasks and subtasks): 6. Integration of the proposed research with education, public outreach components, project management plan and collaboration: PI SengOr has expertise in solid waste decomposition, environmental microbiology, environmental biogeochemistry, multi-component multi-phase reactive transport modeling, quantitative geochemistry, and scientific project management. She has been extensively working and publishing on microbial growth kinetics, modeling microbial metabolism in low energy yielding environments, and the coupling of kinetic reactions with multi-phase reactive transport. This project will train and mentor I graduate Student who will be engaged in the experimental and modeling efforts. PI Seng6r will have the responsibilities for the experimental design and analysis, and the implementation of the mathematical numerical model integrated with the experiments, as well as training and supervision of students. Her research group will work very closely with the City of Denton MSW Landfill authority, especially with Mr. Vallee Kernler (Landfill General Manager) and Mr. David Dugger (Landfill Manager) with regards to the operation of the landfill pilot bioreactor experiment. She will also work closely with the U.S. Army Corps of Engineers, Engineer Research and Development Center, Environmental Laboratory especially with Drs. Larson, Martin, and Deliman. The graduate students will be spending significant amount of time at the landfill facility to carry out the sampling and experimental analysis at the landfill pilot bioreactor. The project results will be disseminated to the City of Denton, TX, MSW Landfill authority. SMU will host coordination meetings or conference calls, at least quarterly, with Project Partners to discuss project activities, project schedule, Communication needs, deliverables, and other requirements as seen necessary by the landfill authority. SMU will develop lists of action items needed following each project coordination meeting and distribute to the project personnel. This pr(7ject would highly appeal to the public outreach and education aspects by dissemination of the results to other interested parties through focused workshops, meetings, peer-reviewed articles and conference presentations. Research work will also be incorporated into students' thesis and/or dissertations and published in peer - reviewed journals. The pro ' ject will build up a solid collaboration with the City of Denton MSW Landfill Facility, U.S. Army Corp of Engineers Environmental Laboratory, and Southern Methodist University, with regards to the state of the art research effort, as well as graduate level teaching and public outreach components. 10 EXHIBIT 3 7. References Agency./or Toxic Substances and Disease Registry (A TWW ), 2001. Land(Ill Gas Primer - An Overviewjbr Environmental Health Pro,lessionals. 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Extracellular carbohydrate polymers from five desert algae with different cohesion in the stabilization of fine sand grain. Carbohyd Polym. 54: 33-42. Larson, S. L., Newman,.J. K., Griggs, C. S., Beverly, M., & Nestler, C. C. (2012). Biopolymers (is, an Alternative to Petroleum-Based Polynivrsjlor,Soil Modzficalion, L,SYCII ER-0920: EXHIBIT 3 Treatabilily,%dies (No. ERI)(.-'I'R.- 12-8). Army Corps Of Engineers Vicksburg MS Engineer Research And Development Center. Laspidou, C. S., & Rittmann, B. E. (2002). A unified theory for extracellular polymeric substances, soluble microbial products, and active and inert biomass. Water Research, 36(11), 2711-2720. Lee, J. C., & Pandey, B. D. (2012). Bier- processing of solid wastes and secondary resources for metal extraction—a review. Waste Management, 32(1), 3-18. Manzur, S.R. 2010. Effect of leachate recirculation for methane generation in bioreactor landfill, Masters Thesis, The University of Texas at Arlington. Monteiro, N. K., Aranda-Selverio, G., Exposti, D. T. D., Silva, M., Lernos, E. G. M.,Can-ipanharo, J. C,, & Silveira, J. L. M. S. (2012). Caracterizac, do quimica dos g6isproduzidos pelas bact6rias diazotr6ficas Rhizobium tropici e MesorhizobiUm sp.Quimica Nova, 35(4), 705-7W Mota, R., Guirnar5es, R., BUIttel, Z., Rossi, F., Colica, G., Silva, C. J., Santos, C, Gales, L.,Zille, A., De Philippis, R., Pereira, S. B., &'Farnagnini, P. 2013). Production andcharacterization of I extracellUlar carbohydrate polymer from Cyanothece sp. ( VY01.10. Carbohydrate Polymers, 92(2), 1408-1415. Noel., K. D. (2009). Rhizobia. In M. Schaechter (Ed.), Encyclopedia of microbiology (pp.261 277). San Diego, CA: Academic Press. Pacey J, Augenstein D, Morck R, Reinhart D, Yazdani R. Bioreactive landfill. MW Manage 1999;Sept/Oct:53-60 Pohland, F. G.(1975) Sanitary Landfill Stabilisation with Leachate Recycle and Residual Treatment (Report No. EPA-600/2-75-043). USEPA Radchenkova, N., Fassilev, &, Panchev, I., Anzelino, G., Tomova, 1, Nicolaws,B., Kilin•heva, M., Petrov, K., & KaInbourova, M. (2013). Production andproj)erlies, of twrx novel exopo4ysaccharid( ,ssynthesized by a thermolAilic Bac-terium A eribacillus pallidus 418. ApIked Biochemistry and Biotechnology, 171,31 43. S'chinner, F, Burt),�waller, W., 1989. Ex1raction (Y'zinc,from industrial waste by Penicilliumsj). Appl. Environ. Microbiol. 55, 1153-1156. $eng6r, S. Sevinq,'Fimothy R. Ginn, Christopher J. Brugato, and Petros Gikas. (2013) Anaerobic microbial growth near thermodynamic equilibrium as a function of ATP/ADP cycle: The effect of maintenance energy requirements. Biochemical Engineering Journal 2013:65-72 ON EXHIBIT 3 $eng6r, S. Sevinq, Spycher, N. F., Ginn, T. R., Sani, R. K., & Peyton, B. (2007a). Biogeochernical reactive — diffusive transport of heavy metals in Lake Coeur d'Alene sediments. AI)plied Geochetnisiry, 22(12), 2569-2594. $engbr SS, Spycher NF, Ginn TR, Sani RK, and Peyton B. (2007b). Biogeochemical reactive diffusive transport of heavy metals in Lake Coeur d'Alene sediments. Appl. Geochem. 22, 2569- 2594. Seng6r, S.S. CJ BrUgato, P Gikas, M Fletcher, TR Ginn (2009) A comparison of approaches to model thermodynamics and maintenance energy requirements of microbial metabolism. - Geochimica, et Cosmochirnica, Acta Supplement, Vol. 73, pp. 1196. Silvi, S., Barghini, P., Aquilanti, A., Juarez-Jimenez, B., & Fenice, M. (2013). Physiologicand metabolic characterization of a new marine isolate (BM39) of Pantoea sp.producing high levels of exopolysaccharide. Microbial Cell Factories, 12, 10. Spycher NF, Issarangkun M, Stewart B, Sengor S, Fielding E, Ginn, TM, Peyton BM, and Sam RK. (2011). On Modeling Biogenic Uraninite Precipitation and Reoxidation by Iron(Ill)(hydr)oxides: Thermodynamic and Kinetic Considerations. Geochim. (.70stnochim. Acta. 75: 4426-4440, Tateda, M., Ike, M., & Fqjita, M. (1998). Comparative evaluation of processes for heavy metal removal from municipal solid waste incineration fly ash.journtil (? 'Etivironineiital,Scieiic-e,v, 10(4), 458-465. Wingender J, Neu TR, Flemming II-C. What are bacterial extracellular polymeric substances? In: Wingender J, Neu TR, Flemming 11-C, editors. Microbial extracellular polymeric Substances: characterization, structure and function. Berlin: Springer, 1999. Wu, fl. Y., &Ting, Y. P. (2006). Metal extraction from municipal solid waste (MSW) incinerator fly ash--Chemical leaching and fungal bioleaching. Enzyme (Ind Nficrobial Technology, 38(6), 839-847. US Army Corps of Engineers, Engineer Research and Development Center, Environmental Laboratory (2012). The Use of a Natural Biopolymer as an Agricultural Soil Amendment, Biopolyrner fact sheet. 13 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -307, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Dependent Care Services for regular full time City of Denton employees; providing for the expenditure of funds therefore; and providing an effective date (RFP 5914- awarded to Bright Horizons Family Solutions LLC, in the three (3) year not -to- exceed amount of $178,387.50). BACKGROUND In March 2014, the City of Denton launched an Employee Innovation Program where employees identified, researched, and recommended programs to improve services and employee engagement, among other goals. Dependent care resources was identified as a key employee need. Resources are limited with daycare options, unplanned back up care, and high costs. Having employees available to provide critical services to our customers, and not worry about closed schools, child care centers, and caregivers' ability to provide back -up care, is a service continuity issue. With this need being identified, staff completed additional research in regards to finding a holistic dependent care strategy that would encompass dependent, elder, and pet care resources at a competitive price. To ensure that the City of Denton would receive the best value for the contracted services, staff issued Request for Proposal (RFP) 5914 to qualified vendors. Requests for Proposals were sent to 275 prospective firms that specialize in dependent care services. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Bright Horizons Family Solutions, LLC submitted the lone proposal in response to the RFP. A selection committee comprised of representatives from Risk Management, Customer Service, and Parks and Recreation reviewed their proposal in accordance with specified evaluation criteria. Proposals were solicited utilizing the following criteria to evaluate the best value: 1. Compliance with Specifications 20% 2. Indicators of probable performance 25% 3. Price 55% The evaluation committee's goal while evaluating the submission was to determine whether Bright Horizons Family Solutions, LLC complied with the City's specifications while offering their services at a competitive City of Denton Page 1 of 3 Printed on 2/26/2016 File #: ID 16 -307, Version: 1 price. At the conclusion of their evaluation, the committee determined that the organization is best served by establishing a contract with the vendor. Staff asked the vendor to reevaluate their proposed pricing and submit their Best and Final Offer (BAFO). The vendor elected to maintain the pricing submitted with their original proposal. The pricing submission and evaluation scoring is attached as Exhibit 1. Bright Horizons Family Solutions LLC is able to provide resources for dependent, elder, pet care and additional services through a per regular full time employee fee to access all of the services. The employee would then be financially responsible for services used. Employees will have the ability to obtain ten (10) uses of urgent and planned back -up care for children and adult/elders for a nominal copay (center -based child care = $15 /child or $25 /family per day; in -home child and adult/elder care = $6 per hour with four -hour minimum). For all other needs, including nannies, senior care consultation, pet care, and housekeeping needs, they will have free membership to an online caregiver database. The City will pay a $5,000 implementation fee, and $3.06 per employee, per month to make the benefit available to employees. This equates to approximately $60,000 for the first year, $57,750 for year two, and $60,637.50 for the final year. The fee will be adjusted by the number of full time employees annually. The program includes more than 2,800 child care centers (including 400 Bright Horizons - managed centers), 851 in -home agencies (representing approximately 200,000 caregivers), and is supported by a 24/7/365 call center, a back -up call center, online platform, and mobile application technology. There are fifteen (15) centers located within 15 miles of downtown Denton and seventy one (71) centers within 31 miles of downtown to meet the needs of both local and commuting employees. The services that will be offered through this plan are as follows: Back -Up Care Additional Services Urgent and planned back -up care for Ongoing and long -term services for children, children and adults /elders (through the adults /elders, pets, and housekeeping (through Back -Up Care Advantage Program) Bright Horizons Care Direct) Center -based (well) and in -home (well and Membership to online national database (powered mildly-ill) care for children In -home care for by Sitter City) of child and adult/elder caregivers, adults /elders Available throughout the U.S. pet care, housekeeping needs Access to Years regardless of employee's and dependent's Ahead senior care consulting and elder care location Telephonic, mobile, and online access service referral (telephonic and online) Preferred Fully staffed (90+ care consultants), call center enrollment with waived registration fee into available 365/24/7 Care consultants remove community -based Bright Horizons - managed burden by identifying and securing care options centers Tuition discounts available at select Supports business continuity through our add- partner centers Discounted tutoring and test prep on program Crisis Care Assist at no additional services through Bright Study Unlimited use with cost Up to 10 uses per employee annually with user negotiating and bearing full cost of care ominal copay Using dependent, elder and pet care service resources, will strengthen the City's benefits package to improve recruitment and retention efforts, engagement, resilience, overall employee well- being, and sustained productivity, and provide better business continuity. RECOMMENDATION City of Denton Page 2 of 3 Printed on 2/26/2016 File #: ID 16 -307, Version: 1 Award a contract with Bright Horizons Family Solutions LLC, in the three (3) year not -to- exceed amount of $178,387.50. PRINCIPAL PLACE OF BUSINESS Bright Horizons Family Solutions LLC Watertown, MA* *Corporate offices are located in Massachusetts but services will be provided through the company's Irving, Texas office. ESTIMATED SCHEDULE OF PROJECT This contract will take effect immediately following City Council Approval. The target date for implementation of all services under this contract is June 1, 2016. This is a three year contract. FISCAL INFORMATION These services will be funded from the Risk Retention Fund account 86002.7879. 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 1: Pricing and Evaluation Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Tiffany Thompson at 349 -7401. City of Denton Page 3 of 3 Printed on 2/26/2016 1�1 H IWI W Is--1 o 3 Z 0 s Qi W N m z 41 C m C 41 C N N T V v c m O cu d_ Q n_ v o c o r > 0 �n O1 O1 0 v 75 v 0 m 0 t/} m c 0 N u 2 0 v O 0 ° o 0 C v v v� d v vii V c c d m c d O N O C N F CT C N v co O N Q Q•, -O C N o O N O o O o O N O o O v C t\ L\!1 t\ t\ L\!1 t\ O c i o U °o .a G O 0 � O_ vv G v v u c Q N o y .S2 N v v cL E o G m c v o > v $° u U > O 7 w v -° L) o O -a a C O 00 c v c p Z v N n d c u G aOU v _ N o 3 o vO Q r-+ O K w - N c o - O (u o O v O Y o m N v U c W N f0 f0 E G OU N E c O U N G O y O c O O O O = c u Q > F U c o Y _ V E N 0 N O N G ° c N o o u E o o C IN c O N bD c T E m O ` v Y �O (p N i0 f0 5; V O E o OU o N 'G bD V > c m v a c O O m 'O .F 4t O >. O. o W ++ E - = ° v (u o v = E o u cb o 0 x O .c O � > -w W N d wr Q H 0 w w w w > > Q N N N N N N a F z v 75 v 0 m 0 t/} m c 0 N r_ 0 IZ m m W O to to O N c c6 O o O U O U O Q Cl) c6 c O O O � N L O E U_ u f6 O O F- O to to O N O O o 0 F� O F Q Z z Z °o .a m c o y o o yr c m > O L) 3 o O v v ' Q c =) oo c W > o o +^ N LL N c m o V N lLj o o 0 x v� o Q N a z 0 T) O O Q c n N d � 0 } z N N Q E v o v u s O C � U C £ LL W C O c T i 3 s o v v c u O d N � V io i6 � = CO Q Y N N W N d: c c = O 6 u Qj aO+ O t o o Z v m a a v o V `^ m v F m V v O O m co £ v v v O O o O O u C+ 0 m W W o W W N W f r_ 0 IZ m m W O to to O N c c6 O o O U O U O Q Cl) c6 c O O O � N L O E U_ u f6 O O F- O to to O N EXHIBIT 2 ORDINANCE NO. 2016- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR DEPENDENT CARE SERVICES FOR REGULAR FULL TIME CITY OF DENTON EMPLOYEES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFP 5914— AWARDED TO BRIGHT HORIZONS FAMILY SOLUTIONS LLC, IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $178,387.50). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for Dependent, Elder, and Pet Care 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 5914 Bright Horizons Family Solutions, LLC $178,387.50 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 2 approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under RFP 5914 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 BY: EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND BRIGHT HORIZONS FAMILY SOLUTIONS, LLC (RFP 5914) THIS CONTRACT is made and entered into this date , by and between Bright Horizons Family Solutions LLC a limited liability company, whose address is 200 Talcott Avenue South, Watertown, MA 02472, 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 Contractor shall provide products and /or services in accordance with Contractor's response to the City's document RFP 5914- Dependent, Elder and Pet Care 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 Scope of Work Exhibit 3 (Exhibit "B "); (c) Care Advantage Agreement (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." (CareAdvantage) —11/15 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 BY: m APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY D bD/IocuSignlIed by: BY u ln, x04 C821996C2A2B439... CONTRACTOR DocuSigned by: BY: �bll, ra.ScW�VcUn -t, AUTHO WTURE 2/22/2016 Date: Name: john casagrande Title: General counsel 617 - 673 -8871 PHONE NUMBER jcasagrande @brighthorizons.com EMAIL ADDRESS 2016 -14750 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for access to dependent care services in the initial term shall not exceed $178,387.50 based upon 1,500 employees, except as otherwise agreed by the parties. Co- Payments (as defined in Exhibit C) for actual dependent and elder care services arranged through the Back -Up Care Advantage Program and all payments for Employee- Selected Services (as defined in Exhibit C) shall be paid directly by the employee. The City is not responsible for Co- Payments or amounts due to caregivers or other service providers for Employee- Selected Services by employees. Pricing shall be per Exhibit C attached. EXHIBIT 3 Exhibit B Statement of Work The City of Denton (the "City ") strives to be a leader in employee benefits and retention. The City is interested in adding resources for employees care service's needs. This resource will aide in business continuity, productivity, and engagement while maximizing employee engagement and well - being. The City is seeking proposals from experienced firms that are able to provide care service options for approximately 1,500 full time employees. The care services should include, but are not limited to full time childcare/ eldercare placement (in home and /or center), emergency or planned back -up childcare /eldercare (in home and /or center), and access to a database of care options that employees can select from. The services should provide subsidized and unsubsidized care options for dependents ranging in age from infants to adults /elders and include both well and mildly -ill individuals. A component of the unsubsidized options should include care options and resources for household pets. Care services should be able to accommodate future, anticipated care needs, but more importantly have the ability to address urgent, business - related needs providing timely turn- around and fulfillment of care and easy access (toll -free number and /or website) to care arrangements. Childcare /eldercare options should be available in North Texas. Dependent /Elder Care Contractor Responsibilities (Excludes Employee - Selected Services, as defined in Exhibit C) 1) CITY employees reside in Denton and throughout the North Texas area. Contractor must provide dependent/elder resources located throughout the North Texas area to meet employees' various location needs. 2) The CITY seeks to provide a global solution for employees through a single portal for care services resources. Contractor must be able to provide resources for all three services, Dependent/Elder /Pet Care throughout the North Texas area. 3) Contractor shall provide access to state licensed child care facilities and providers (facilities and in home care providers) at various locations North Texas. 4) Contractor shall provide care resource options for children ages 6 weeks to 14 years. 5) Contractor shall be responsible for recruiting, selecting, and screening back -up providers. 6) Contractor must have at least a three year history with experience providing planned, occasional and unplanned emergency back -up care. 7) Contractor will provide dependent care at various locations in North Texas. 8) Contractor will provide fully insured child /elder care (subject to availability) facilities and all providers (facilities and in home care providers). 9) Contractor will provide timely responses to emergency /back -up care requests. 10) Contractor will provide 24 hour online or call center back -up care request system. 11) Contractor will provide care options for mildly ill children. 12) Contractor will require all child /elder care (subject to availability) facilities and all providers (facilities and in home care providers) require background checks for caregivers. Background checks must be routinely updated in accordance with applicable legal requirements. 13) Contractor shall maintain an active policy on drugs and alcohol in the work place that supports a drug free environment, and be prepared to submit such policy upon CITY request. 14) Contractor will provide an online form for employees to find child /elder care at the discretion of the employee. 15) Contractor will provide utilization reports as needed. EXHIBIT 3 16) Contractor will provide marketing materials such as, but not limited to, brochures, flyers and educational material. 17) Contractor will provide onsite training for key CITY staff on implementation and scope of services. 18) Contractor will provide web training for users. CAREDIRECT ( INCLUDING PET CARE) CONTRACTOR RESPONSIBILITIES (Provided as part of Employee - Selected Services, as defined in Exhibit C) 1) CITY employees reside in Denton and throughout the North Texas area. Contractor must provide access to pet care resources located throughout the North Texas area to meet employees' location needs, subject to availability. 2) The CITY seeks to provide a unified solution for employees through a single portal for care services resources. Contractor must be able to provide access to resources for all three services, Dependent/Elder /Pet Care throughout the North Texas area. 3) Contractor shall be responsible for providing a resource to select and screen back -up pet care providers. 4) Contractor must have at least a three year history with experience providing back -up care options for pets. 5) Provide access to pet care services for various types of pets. 6) Contractor will provide an online form for employees to find pet care at the discretion of the employee. 7) Contractor will provide the ability for CITY Eligible Employees to obtain basic background checks for all CareDirect in -home providers on the online portal for employees to find pet care and in -home dependent care at the discretion and election of the employee. 8) Contractor will provide utilization reports as needed. EXHIBIT 3 Exhibit C Care Advantage Agreement '.1/ \ / '`-r Brut Horizons FAMILY SOLUTIONS' Bright Horizons Family Solutions LLC, a Delaware limited liability company (`Bright Horizons"), agrees to provide and the client identified below ( "Client") agrees to purchase the programs and related services selected below (collectively the "Services ") on the terms described in this agreement, consisting of this Reference Information, the attached Services Terms, and the attached Special Terms, if any (collectively, the "Agreement "). Reference Information Client: The City of Denton Client Address: 215 E. McKinney Street, Denton, TX 76201 Client Liaison: Name: Scott Payne Title: Risk Manager Telephone: 940-349-7836 Facsimile: E -mail: Scott.payne(a),Cityofdenton.com Bright Horizons Account Manager: Name: Mandy Smith Title: Client Relations Director Telephone: 817.5 0 8.8 95 3 Facsimile: E -mail: mandy.smitIt arighthorizons.com Initial Term: May 1, 2016 — April 30, 2019 Commencement Date: May 1, 2016 Annual Fee: $55,000 for year one, plus 5% for each subsequent year Start-Up Fee: $5,000 Approximate Client Employee Population: 1,500 Special Terms (attach, if any): Yes: No: X BUCA® : In- Center Care: Yes: X No: In -Home Care: Yes: X No: _ Maximum Uses Annually: 150 Annual Employee Use Limit: 10 In -Home Use Limit: Yes: No: X Co- Payments Paid to Bright Horizons: Yes: X No: Co- Payment Rates: In- Center Care: $15.00 per child /day; $25.00 per family /day In -Home Care: $6.00/hour CareDirect: Yes: X No: Bright Horizons Family Solutions LLC, 200 Talcott Avenue South, Watertown, MA 02472 USA EXHIBIT 3 Services Terms 1. TERM The term of this Agreement shall begin on the Contract Commencement Date and continue for three years, unless terminated or extended as provided herein. The Initial Term and any Renewal Term(s) are referred to collectively herein as the "Tenn." 2. SERVICES The Services shall be provided exclusively in the United States in accordance with the following terms and conditions. (a) BUCA (Back -Up Care Advantage) Program. BUCA consists of the In- Center Care and In -Home Care selected in the Reference Information. Eligible Employees will be referred to In- Center Care and In -Home Care where applicable and based on availability and the preferences of such Eligible Employees. (i) In- Center Care. "In- Center Care" means back -up care for children provided in child care centers and back -up care for adults provided in adult care centers. In- Center Care is provided in (A) Bright Horizons child care centers available to the general public (`Bright Horizons Centers "), (B) Bright Horizons child care centers having dedicated back- up care capacity available to the employees of clients of Bright Horizons (`Bright Horizons Back -Up Centers "), and (C) child care centers or adult care centers owned or operated by other providers participating in the BUCA program ( "Provider Centers "), subject to availability. Bright Horizons Centers, Bright Horizons Back -Up Centers and Provider Centers are referred to collectively as "Network Centers ". Network Centers operate as quality child care centers and adult care centers in compliance with all requirements of applicable laws, regulations, and licensing requirements. Network Centers are licensed, fully furnished and equipped care centers which operate with caregiver ratios which equal or exceed ratios mandated by state licensing requirements. In- Center Care is provided by experienced caregivers who are screened, employed, trained, and supervised by the operators of the Network Centers. A criminal record background check is required for each caregiver. Use of In- Center Care is subject to varying registration and reservation requirements and the operating policies, procedures and practices established by the operators of the Network Centers. (ii) In -Home Care. "In Home Care" means back -up care for children and adults provided in the homes of Eligible Employees or other authorized locations. In -Home Care is provided by in -home care providers participating in the BUCA program ( "Network Providers"), subject to availability. Network Providers are professional in -home care providers and operate in compliance with all requirements of applicable laws, regulations, and licensing requirements. In -Home Care is provided by experienced caregivers who are screened, employed, trained, and supervised by the Network Providers. A criminal record background check is required for each caregiver. Use of In -Home Care is subject to varying registration and reservation requirements and the operating policies, procedures and practices established by the Network Providers. (iii) Network. Network Centers and Network Providers are referred to collectively as the "Network". Bright Horizons may add or remove Network Centers or Network Providers to or from the Network at any time. Client shall not enter into any agreement with Provider Centers or Network Providers to purchase the same or similar employer - sponsored dependent care or dependent -care related services during or within one year following the Term. (iv) Client Use of BUCA. Use of BUCA by all Eligible Employees shall not exceed the Maximum Uses specified in the Reference Information in any twelve -month period, pro- rated on a monthly basis (the "Monthly Use Limit "). Notwithstanding the foregoing, use of BUCA may exceed the Monthly Use Limit for any three months within any consecutive twelve month period by up to fifty percent (50 %). If specified in the Reference Information, use of the In -Home Care shall not exceed fifty percent of the Monthly Use Limit in any month (the "In -Home Use Limit "). For the purposes of the Maximum Uses and Monthly Use Limit, each use of In- Center Care for each child or adult shall constitute one use regardless of the hours used up to a maximum of one day, and each use of one caregiver for In- Home Care for one or more children or adults shall constitute one use regardless of the hours used up to a maximum of ten hours in one day. A reservation to use BUCA constitutes a use unless cancelled by 5:00 p.m. on the business day immediately prior to the scheduled day of care. Bright Horizons and Client agree to promptly negotiate an amendment to this Agreement in good faith in the event use of BUCA exceeds or is expected to exceed the Monthly Use Limit for more than three months within any consecutive twelve month period or, if applicable, the In- Home Use Limit. Eligible Employees shall not be eligible to use BUCA in excess of the Monthly Use Limit for more than three months within any consecutive twelve month period or, if applicable, the In -Home Use Limit, unless the parties amend this Agreement to accommodate such additional use. (v) BUCA Use Reports. Bright Horizons shall provide Client with standard monthly use reports regarding the use of BUCA by Eligible Employees, including without limitation the identity of the Eligible Employees and the dates of use. (b) CareDirect. CareDirect ( "CareDirect") consists of On- Line Resources, Preferred Enrollment and Discount Access EXHIBIT 3 Program unless otherwise determined by the Client and Bright Horizons. If selected in the Reference Information, CareDirect provides Eligible Employees with unlimited access to options, tools and other resources to search for a variety of dependent care and household services, including Employee - Selected Services. (i) Employee- Selected Services. `Employee- Selected Services" means all child care, elder care and other services provided by those caregivers or other services providers engaged by Eligible Employees through either (A) the On- Line Resources or (B) the Discount Access Program. The terms and conditions of this Agreement are not applicable to the Employee - Selected Services as Employee - Selected Services are not provided by Bright Horizons but rather by a third party selected by the Eligible Employee. (ii) On -Line Resources. "On -Line Resources" are the online forums, resources and tools provided through the Sittercity.com and Yearsahead.com websites which are owned and maintained by Sittercity Incorporated ( "Sittercity ") and which enable Eligible Employees to search for child care, elder care (assessments, planning and services) and other service providers, including tutoring and homework help, pet care and household help. At Client's request, Bright Horizons will provide a written report concerning use of the On -Line Resources by Eligible Employees, including Eligible Employee registration, requests for services, and number of responses received. (iii) Preferred Enrollment. "Preferred Enrollment" means the opportunity to enroll in select Bright Horizons Centers for ongoing primary child care upon availability on a first - come, first -serve basis in advance of the general public. Preferred Enrollment is subject to priority and preferred enrollment arrangements with other sponsoring companies. Use of Preferred Enrollment is subject to compliance with all enrollment requirements. (iv) Discount Access Program. Through the "Discount Access Program ", Eligible Employees are eligible to receive special discounted rates, incentives and promotions arranged by Bright Horizons and offered directly by third party service providers from time to time during the Term. For example, the Discount Access Program may include tuition discounts at child care centers, reduced tutoring rates and discounted eldercare plan fees offered from time to time by Bright Horizons' vendors. Eligible Employee participation is subject to compliance with the applicable third party service provider's enrollment and registration requirements. (v) Availability of CareDirect. The availability of CareDirect is subject to the continued participation by Sittercity in the On -Line Resources and by the third party service providers participating in the Discount Access Program. In the event the On -Line Resources or Discount Access Program are no longer are available, the Annual Fee shall be adjusted and Client shall receive a credit for the pro - rata amount of the Annual Fee paid for the CareDirect resource which is no longer available. (c) Access to BUCA and CareDirect. Bright Horizons shall develop and maintain an informational landing page with limited customization for use by Client's employees to learn about and access BUCA and CareDirect (the "Landing Page "). Client shall have an opportunity to review and approve the content of the Landing Page prior to its launch. Use of the BUCA and CareDirect shall be subject to the terms of use on the Landing Page and other landing pages and websites accessed through the Landing Page. 3. FEES (a) Annual Fee; Start -Up Fee. Client shall pay an Annual Fee for each year (or partial year) of the Term. The Annual Fee shall be paid bi- annually due within thirty days after the later of Client's receipt of an invoice or April 1 and October 1 of each year. The initial Annual Fee is specified in the Reference Information. The Annual Fee rate shall increase by five percent per year on each anniversary of the Commencement Date. In addition, if applicable, Client shall pay the one -time Start-Up Fee specified in the Reference Information within thirty days after the receipt of an invoice. No Annual Fee, Start-Up Fee or other payment shall be refunded or reduced in whole or part except as otherwise provided in this Agreement. Access to the Services may be denied during any period for which an Annual Fee or other payment under this Agreement remains past due and unpaid. Bright Horizons shall have the right to impose interest charges at the rate allowed by the Texas Government Code 2251 (the Prompt Payment Act) and Client shall promptly pay such charges if imposed. (b) Increase in Client Employee Population. The Annual Fee rate is established in part based on the Approximate Client Employee Population specified in the Reference Information. Bright Horizons and Client agree to promptly negotiate an amendment to this Agreement and the Annual Fee in good faith in the event of any increase in the Client's employee population specified in the Reference Information. 4. ELIGIBLE EMPLOYEES; USE OF SERVICES (a) Eligible Employees. Each employee and other person determined by Client to be eligible to use the Services constitutes an `Eligible Employ ". Client agrees to provide Bright Horizons an eligibility file identifying all employees eligible to use BUCA in a format and with information fields agreed to by the parties, and to update such eligibility file no less frequently than monthly. Client shall notify Bright Horizons if an employee is no longer eligible to use the Services, or in the event it has knowledge of any unauthorized use of the Services. EXHIBIT 3 (b) Annual Employee Use Limit. Use of BUCA by an Eligible Employee in a calendar year shall not exceed the Annual Employee Use Limit specified in the Reference Information unless otherwise authorized by Client and upon notification to Bright Horizons. For purposes of the Annual Employee Use Limit, each use of BUCA by an Eligible Employee shall constitute one use regardless of the number of children or adults served or the hours used up to a maximum of one day (for In- Center Care) or ten hours in one day (for In -Home Care). (c) Registration Resources. Eligible Employees shall use BUCA solely in accordance with, and subject to, the provisions set forth in any FAQ, policies and procedures, registration resources and information provided by Bright Horizons, Network Centers and Network Providers to Eligible Employees using BUCA, as the same may be updated, amended, or replaced from time to time (provided such update, amendment or replacement does not materially reduce the obligations of Bright Horizons or increase the obligations of Eligible Employees) ( "Registration Resources "). The content of the Registration Resources and the procedures required to register to use BUCA may vary. (d) Co- Payments; Other Charges. If applicable as specified in the Reference Information, a co- payment shall be collected and retained by or on behalf of Bright Horizons from each Eligible Employee in connection with each BUCA use (each a "Co- Payment "). Co- Payments for the use of In- Center Care are calculated for each child or adult on a per use basis regardless of the hours of use, up to any applicable family limit per day specified in the Reference Information. Co- Payments for the use of In -Home Care are calculated for each caregiver needed on a per hour basis based on the greater of (i) the requested or actual hours of care, whichever is greater, and (ii) four hours. Co- Payments are non - refundable and shall be due and paid regardless of use unless the reservation has been cancelled by 5:00 p.m. on the business day immediately prior to the scheduled day of care. Other charges for In -Home Care may apply where skilled medical care or assistance is required or requested by the Eligible Employee and will be communicated to the Eligible Employee in advance. Bright Horizons may use all reasonable and lawful means to collect Co- Payments and other charges from Eligible Employees, and may deny access to the BUCA program to any Eligible Employee who fails to pay one or more Co- Payments or other charges. (e) Client Coordination. (i) Communications. Successful implementation and use of the Services requires multiple and ongoing communications of the benefit of the Services to employees. Bright Horizons will support Client's marketing and promotion of the Services to Client's employees and recommend appropriate methods for distribution of information about the Services to Client's employees. The parties agree to prepare and implement a mutually acceptable communications plan annually for this purpose. The plan will include a variety of strategies to communicate the benefit of the Services to employees during the year, including providing Services information in standard benefit communications (such as into new hire, FMLA and return to work materials) and providing a link on the Client's human resource /benefits web page. (ii) Client Responsibility. Client agrees to make available to Bright Horizons all applicable policies, processes, guidelines, frequently asked questions and other documentation to ensure that Bright Horizons' systems meet the needs of Client and that Bright Horizons' staff is adequately trained in order to serve Client's employees. Client agrees to provide Bright Horizons with named points of contact for key business areas. 5. GENERAL TERMS (a) Insurance. Bright Horizons shall maintain at all times during the Term the following minimum insurance coverages for the Services: (i) Commercial General Liability insurance with combined single limits for bodily injury and property damage, including without limitation physical and sexual abuse and molestation, of not less than $1,000,000 each occurrence and $2,000,000 in the aggregate per policy year; (ii) Business auto liability insurance including owned, non -owned and hired vehicles with combined single limits for bodily injury and property damage of not less than $1,000,000 each accident; (iii) Umbrella Liability insurance in the amount of $25,000,000, with umbrella liability coverage following the form and terms of the underlying coverages to the extent such coverages are available; and (iv) workers' compensation insurance as required by law. All policies shall be written using A- rated carriers falling within a "Secure" rating by the A.M. Best Company or its replacement. Bright Horizons shall provide Client a certificate of insurance evidencing the foregoing coverages and limits at the commencement of the Initial Term and a renewal certificate not more than ten days following the expiration of the certificate it renews. Each certificate shall specify Client as an additional insured for the general, automobile and umbrella liability coverages described above. Client shall receive a minimum of thirty days' prior written notice of any cancellation or limitation of any coverage, and ten days' prior written notice of any cancellation due to nonpayment. As provided in subparagraph 2(b)(i), Employee - Selected Services are not part of the Services for purposes of this subparagraph 5(a). (b) Confidential Information; Employee Services Information. Each party shall hold in strict confidence all nonpublic information received directly from the other party EXHIBIT 3 whether oral, written or in machine readable forth, including but not limited to information relating to the party or its business plans, customer information, current, future and proposed products, operations, operating procedures, photographs, graphics, data, formulas, manuals, charts, information systems, technology, data, computer programs, software (and the operational functions, features and limitations thereof), processes (whether internal to a party's business or products or external to a party's services or customers), methods of doing business, servicing customers and customer relations, business and contractual relationships, business forecasts, sales and merchandising or marketing plans, curricula, finances, budgets, investor information, projections, analyses or results (collectively, "Confidential Information ") other than to the extent required by law or judicial order, disclosed under regulatory examination or necessary to enforce the terms of this Agreement. Confidential Information shall not include Employee Services Information (as defined below). In addition, Bright Horizons shall hold in strict confidence, all Employee Services Information in accordance and strict compliance with all applicable Federal, State, and Local privacy laws and regulations regarding information of individuals, and specifically the statutory mandatory exception of releasing a Social Security Number of a living person, as required by the Texas Government Code 552.147 (Public Information Act), and further defined by Texas Attorney General Opinion GA -0519. `Employee Services Information" means any information received by Bright Horizons directly from or on behalf of Eligible Employees and their dependents (or other designated users) or generated By Bright Horizons in connection with the use of the Services by the Eligible Employee, including, without limitation, personally identifiable financial information and data related to gender, birth dates, addresses, health and medical information. Bright Horizons has no obligation to disclose any Employee Services Information to Client but may disclose as necessary in connection with the delivery of the Services or disclosed pursuant to any regulatory requirement or an order, decree, subpoena or other validly issued judicial, regulatory or administrative process (a) by any licensing agency, department of social services, or similar entity involved in the safety, care, oversight or protection of dependents, or (b) in connection with any dependent custody or similar domestic dispute, and only in full compliance with all Federal, State, and Local laws regarding the protection of personal information. (c) Bright Horizons' Property /Marks. As between the Client and Bright Horizons, Bright Horizons is the owner of all intellectual property used in connection with the Services, including but not limited to all Registration Resources, Bright Horizons Marks (defined below), communication materials, websites, use reports and other materials created by or for Bright Horizons (collectively "Bright Horizons Property"). Client shall not copy or reproduce, sell, assign or license any Bright Horizons Property without the prior written approval of Bright Horizons and only in accordance with the provisions of this Agreement. The permitted use of such Bright Horizons Property (including the Bright Horizons Marks) pursuant to the terms of this Agreement shall not create any ownership interest in such property or related rights whatsoever. "Bright Horizons ", "Back -Up Care Advantage Program ", "BUCA ", "CareDirect ", and related trademarks and logos are trademarks of Bright Horizons. These marks, (together with any related proprietary indicia, service marks, trade dress, trade names, logos, symbols or brand names) are referred to herein collectively as the `Bright Horizons Marks." Bright Horizons hereby grants Client a limited, royalty -free license to use the Bright Horizons Marks in the United States for the limited purpose of Client's internal communications to its employees about the Services. This license is revocable in whole or part for any or no reason by Bright Horizons at any time. Client will not use the Bright Horizons Marks for any other purpose without the prior written consent of Bright Horizons, which shall be revocable at any time. Client agrees that all of its uses of the Bright Horizons Marks shall be subject to Bright Horizons' reasonable review and instruction to ensure that Client's use is consistent with Bright Horizons trademark protocols, including but not limited to the use of bold text and an "W' designation where any registered Bright Horizons Mark appears. Client may only utilize such logos provided by Bright Horizons. Upon the termination or expiration of this Agreement, any license to use the Bright Horizons Marks shall automatically expire, and all use of the Bright Horizons Marks by Client shall cease without any further action required by the parties. (d) Client Property/Marks. As between Client and Bright Horizons, Client is the owner of all intellectual property owned by Client, including but not limited to all trademarks and service marks, websites, communication materials, employee eligibility files and other materials created by or for Client (collectively, "Client Property"). Bright Horizons shall not copy or reproduce (other than for use in connection with the Services), sell, assign, or license any Client Property without the prior written approval of Client. Client hereby grants to Bright Horizons a limited, royalty -free license to use Client's name and trademarks in the United States for the limited purpose of fulfilling its obligations under this Agreement and to use in Bright Horizons' client lists. This license is revocable in whole or part for any or no reason by Client at any time. Upon the termination or expiration of this Agreement, any license to use the Client's name and trademarks shall automatically expire, and all use of the Client's name and trademarks by Bright Horizons shall cease without any further action required by the parties. (e) End of Term. At the termination of this Agreement, the parties will promptly return or destroy all intellectual property of the other party in their possession and to cease EXHIBIT 3 use thereof, except that each party may retain copies for archival purposes. (f) Assignment. Bright Horizons shall not assign this Agreement without the prior written consent of the Client; provided, however, that no such consent shall be required if such assignment is made to, accepted by and enforceable against an assignee (i) which is a parent, affiliate or subsidiary of Bright Horizons, or (ii) which is a successor to Bright Horizons as a result of a merger, sale, consolidation or reorganization of all or substantially all of the assets of Bright Horizons, provided there is no material change in the Services or the obligations of the assignee under this Agreement. (g) No Employment. Client shall not directly or indirectly employ or solicit any employee of Bright Horizons to perform dependent care or other similar roles for the benefit of Client or its employees regardless of location during or within one year after the Term. Unsolicited inquiries or responses by Bright Horizons' employees to general media advertising or similar "blind" solicitations for positions other than dependent care or other similar roles shall not apply to this subparagraph. (h) Indemnities. Bright Horizons (" Indemnitor") agrees to indemnify, defend, and save harmless the Client, its directors, officers, partners, employees and agents (each an "Indemnitee ") from all third party suits, actions, claims, demands, damages, losses, liabilities, expenses and costs, including without limitation reasonable attorneys' fees, arising out of or in connection with (i) the breach of any contractual duty by the Indemnitor under this Agreement, or (ii) personal or bodily injury (including death) to any person including without limitation any children or adults or (iii) damage to the property of any person or entity, in each event to the extent such injury or damage was caused by the willful or negligent acts, errors or omissions of the Indemnitor, its directors, officers, partners, employees, or agents. Indemnitor's obligations under this paragraph shall be limited to where the directors, officers, partners, employees and agents of Client are acting in their capacities as directors, officers, partners, employees and agents, respectively, and not as parents or guardians using the Services. As provided in subparagraph 2(b)(1), Employee - Selected Services are not part of the Services for purposes of this subparagraph 5(h). (i) Termination. (i) Either party may terminate this Agreement upon any material breach by the other party of any obligations under this Agreement by sending such defaulting party written notice of the termination stating the nature of the breach of obligation. Such notice of termination shall be effective thirty days following the date of delivery thereof unless the breach is remedied to the satisfaction of the terminating party during such thirty day period; provided, however, that if the nature of the breach of obligation is such that it is not capable of being remedied within such thirty day period, so long as the breaching party commences remedying the breach within such thirty day period and diligently pursues such remedy through completion, the notice of such termination shall have no force or effect. In the event the Client is the terminating party under this paragraph, and Client is not in default of its obligations under this Agreement, Bright Horizons shall promptly refund to Client upon such termination any pro rata portion of the Annual Fee then paid for the remainder of the Term. (ii) Client's payment obligations are payable only and solely from funds appropriated and available for this Agreement. Client agrees to take all reasonable steps to ensure the continued appropriation of funds due under the Agreement. In the event funds sufficient to permit Client to pay its obligations under the Agreement have not been appropriated, Client may terminate the Agreement as of the anniversary of the Commencement Date upon no less than one hundred twenty (120) days' written notice. In the event of termination under this paragraph due to inadequate appropriation of funds, there will be no penalty nor removal fees charged to Client. (j) Miscellaneous. This Agreement and any amendment or renewal thereof may be executed in multiple counterparts, each of which shall be deemed an original and effective upon delivery and all of which shall be considered one instrument as if each party had signed the same signature page and may be transmitted by fax or by electronic mail in portable document format and signatures appearing on faxed or electronic mail instruments shall be treated as original signatures. This Agreement supersedes any and all prior discussions, correspondence or agreements between the parties relating to the Services or the terms of this Agreement and may be amended only by a writing executed by both parties. This Agreement shall be governed by the laws of the Texas without regard to conflict of law principles, and shall apply to all successors and assigns. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall be held invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. Paragraph headings in this Agreement are for convenience of reference only and shall not define or limit the provisions of this Agreement. Any notices required under this Agreement shall be in writing and shall be deemed given when received if delivered by hand, by certified mail (postage prepaid and return receipt requested), or by a nationally recognized overnight courier, to the corporate offices of Client and Bright Horizons at the addresses set forth in the Reference Information. The parties agree that nothing in this Agreement shall be deemed to create a partnership, EXHIBIT 3 employer - employee relationship, or joint venture between the parties, it being agreed that Bright Horizons shall be acting solely as an independent contractor under this Agreement at all times. This Agreement is solely for the benefit of Client and Bright Horizons, and no other person or entity shall be deemed a third party beneficiary of any term hereof. In no event shall either Client or Bright Horizons be liable to the other for any indirect, consequential, special, incidental or punitive damages, including without limitation for lost business or profits or for any failure or delay in performance of its obligations under this Agreement beyond its reasonable control other than the obligation of payment. Client acknowledges that breach of subparagraph 2(a)(iii) or subparagraph 5(g) may cause irreparable harm to Bright Horizons and, in addition to any other available remedies, Bright Horizons shall be entitled to seek temporary and /or permanent injunctive relief to enforce this provision. Without limitation, the provisions of paragraph 3 and subparagraphs 5(b), (c), (d), (e), (g), and (h) shall survive the expiration or termination of this Agreement. EXHIBIT 3 Exhibit D INSURANCE REQUIREMENTS AND WORKERS' COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shallprovide and maintain the minimum insurance coverage as indicated hereinafter during the tee in of this Contract. Contractor shall file with the Purchasing Department satisfactory certificates of insurance. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any tune. 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. • Contractor shall be responsible for any deductibles or self - insured retentions • Liability policies shall provide for the following: ■ City of Denton, its Officials, and Employees shall be included as Additional Insured. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy. 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 (10 days for non payment). 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 within ten (10) days after written notification by the City, City may, at its sole option, terminate this agreement effective on the date of the written notification. 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: (CareAdvantage) —11/15 EXHIBIT 3 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 products, and completed operations, independent contractors, and broad form property damage coverage. 0 Coverage B shall include personal injury. 0 Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for products and completed operations, independent contractors. 0 Contractual liability covering this contract, 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, and use of all automobiles used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy which provides 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 EXHIBIT 3 The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] 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 EXHIBIT 3 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. EXHIBIT 3 ATTACHMENT 1 [N /A] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate EXHIBIT 3 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. L 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; provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. EXHIBIT 3 By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self - Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. EXHIBIT 3 Exhibit E 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 12urchasingLcityofdenton.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. the City of Denton Response to R-FP 5914 Prepared by: Bright Fk)I'IZOTIIS CareAdvantage- A 8'righ" www.brighthorizon.s.cor-.n Phil Westberry Senior Client Services Director (51.2)280 74-4.7 phil.westberry( bright horizo n.s. co rn October 29, 201.5 EYARRVT 3 We understand that certain information contained within the following RFP response may be released. The information considered proprietary is highlighted and all items denoted as such should remain confidential and may not be shared with a third party without the prior written consent of Bright Horizons Family Solutions*' ( "Bright Horizons""). The release of this information would result in a loss of proprietary information and could damage our ability to remain competitive and is not subject to disclosure pursuant to State of Texas Local Government Code 252.049 and Section 552.110 of the Texas Public Information Act. The City of Denton ( "the City ") is welcome to use or share any sections of this proposal internally for deciding on a dependent care provider. All trademarks, logos, and trade names used in this request for proposal are proprietary to Bright Horizons, and are protected by U.S. and international trademark laws. These include the following: Bright Horizons Bright Horizons Family Solutions*' Bright Horizons Care AdvantageTM Back -Up Care Advantage Program Bright Horizons CareDirectTM Bright Horizons Special Needs BrightStudyrm College Coach® .EdAssiW Horizons Workforce Consulting °2015 Bright Horizons Family Solutions LLC i The City of Denton Denton, Texas EYAHRVT 3 Table of Contents CoverSheet ........................................................................................................................... ..............................1 PricingSheet: Exhibit 1 ....................................................................................................... ..............................2 Completed Solicitation Checklist ....................................................................................... ..............................3 Attachment A: Business Questionnaire ............................................................................ ..............................4 Attachment B: Exception Form ....................................................................................... .............................40 AttachmentD: References ................................................................................................ .............................44 Attachment E: Conflict of Interest Questionnaire Form ............................................. .............................45 Attachment F: Signed Acknowledgement Form ............................................................ .............................46 Appendix A: Provider Comparison Chart Appendix B: Sample Utilization Report AppendixC: Customer Satisfaction Survey Appendix D: Sample Marketing Materials Appendix E: Bright Horizons Standard Terms and Conditions °2015 Bright Horizons Family Solutions LLC ii The City of Denton Denton, Texas EYAHRVT 3 Request for Proposals RFP 5914 Supply of dependent, elder, and pet services for the City of Denton Name of Organization: Bright Horizons Family Solutions LLC Company Website: www.brighthorizons.com Street Address or P.O. Box: 9901 E. Valley Ranch Parkway, Suite 2015 City, State, and Zip: Telephone: Fax Number: Contact Person: Title: Irving, Texas 75067 (512) 280 -7447 (972) 409 -7153 Phil Westberry Senior Client Services Director Email Address: nhil .westberrc)brighthorizons.com Date of Submission: October 28, 2015 °2015 Bright Horizons Family Solutions LLC 1 The City of Denton Denton, Texas EYAHRIVT 3 X Exhibit 1 — Pricing sheet X Review Exhibit 2 — General Provisions and Terms and Conditions X Review Exhibit 3 — Scope of Work /Technical Specifications N/A Review Exhibit 4 — Technical Drawings and Plans if applicable) N/A Submission of Exhibit 5 — FTP Site Form if applicable) N/A Review Exhibit 6 — Federal Grant Requirements if applicable) X Cover sheet X Solicitation number X Solicitation name X Firm name X Firm address X Contact name X Contact hone X Contact fax X Website address X Contact email address X Solicitation Checklist X Attachment A- Business Overview Questionnaire X Document how firm meets minimum qualifications Section 3 X Detail to support evaluation criteria X Attachment B — Excep lion Form N/A Attachment C — Safety Record Questionnaire if applicable) X Attachment D — Reference Form X Attachment E — Conflict of Interest Questionnaire Form — with signature X Attachment F - Acknowledgment X Acknowledgment of Addenda X Submission signed by authorized officer, in the orderspecified below Hard Copy Submission: If submitting a hard copy, the City requires one (1) original N/A and three (3) copies, with the pricing sheet submitted electronically in excel or emailed in excel to EbidsLc),cityofdenton.com with the Solicitation # and name in the subject line. Electronic Submission: If submitting an electronic proposal only, email to X Ebids &cijv:4denton.com with the Solicitation # and name in the subject line. The Pricing sheet (Exhibit 1) must be in excel format. °2015 Bright Horizons Family Solutions LLC 3 The City of Denton Denton, Texas EYAHRVT 3 RFP 5914 Pricing Sheet for DEPENDENT, ELDER & PET CARE SERVICES Respondent's Business Name Bright Horizons Principal Place of Business (City and State) Watertown, MA Section B. Usage Fees (Cost to Employees upon utilization of services) ITEM DESCRIPTION City of Denton proposed Date if D iscounted ITEM QTY UOM Type of Service Requested requested can not meet Cost of Service Rate completion required 6 schedule schedule: Employee Co -Pay Center Based Care $15/$25 * NA One -time implementation cost, included all cost related to Professional 7 1 1 EA services, installation, integration, configuration, marketing, training, and Long Term Care travel expenses. 2/15/20161 $5,000 $ Onsite educational training for City of Denton Personnel as needed after 2 1 EA implementation (includes travel). 4/15/2016 Included 3 1 EA Website training as needed after implementation. 4/15/2016 fee waived Included 4 1 EA Educational and Marketing materials ( as needed). Provided, City to Up to 10% NA 4/15/2016 print as needed 5 1 YR Per employee cost to City of Denton for access to ALL services. 2/15/2016 $3.06 PEPM* Employee access to child, elder and pet sitter online database- additional Recurring operation and maintenance. Include all cost related to licensing 6 1 yR and support. 2/15/2016 Included Year One Costs (Dependent on # of employees at renewal date) $60,000.00 section above Year Two Cost (Dependent on # of employees at renewal date) $57,750.00 Year Three Cost (Dependent on # of employees at renewal date) 150 uses per year $60,637.50 $0.001 Three Year Total Cost to the City based upon the number of employees $0.00 $178,387.50 Section B. Usage Fees (Cost to Employees upon utilization of services) ITEM DESCRIPTION Rate per Subscription Visit Rate per Hour D iscounted I TOTAL Fee Rate Back -Up Care Child and Elder (Scheduled and Emergency) 6 Employee Co -Pay Center Based Care $15/$25 * NA $15.00 7 Employee Co -Pay In Home Care NA $6.00 Long Term Care $ Registration NA Employee Discounted Rate at Agency Facility fee waived 9 Employee Discounted Rate at Agency Network Facility Up to 10% NA Sitter Database 13 Employee access to child, elder and pet sitter online database- additional Included in $0.00 employee fee section above Total $0.001 $0.00 $0.00 $0.00 $0.00 * $15 per center visit for first child, $25 per family for more than one EYAHRIVT 3 /,lxaata�a��t ralax�x�r�at�axra (���° lax�x���al a��a�r�ta�aa��t/a laaaa7a�axa�7)mm he b1h)t4711 In fin-Ina tion t4rr1l be used to t4rj.r'o- a c-ontr ac4 should your firin be ch-co-d fin- award. Our legal name is Bright Horizons Family Solutions LLC. Address: Our headquarters is located at 200 Talcott Avenue South, Watertown, MA 02472, and our regional office is located at 9901 E. Valley Ranch Parkway, Suite 2015, Irving, TX 75063. The agent authorized to sign this contract is Sandra M. Wells, EVP of Employer Services. Sandra's email address is swellsLc),brighthorizons.com. Our parent company is Bright Horizons Family Solutions Inc. 3. Organization Class leas °trae ialla /1l017a01-,�atl' orl 11dl'arl'aaal oc~��atl'oa Bright Horizons is a LLC. Our taxpayer identification number for Bright Horizons Family Solutions LLC is 62- 1742957. 5. Date kstabhshcd: We were established in 1986. 6 / took -all�, Wass erutihzed Business: Yes or No No, we are not a historically underutilized business. °2015 Bright Horizons Family Solutions LLC 4 The City of Denton Denton, Texas ENARRVT 3 1)oc hour a on,1 sully have Sara In the state 0/' i -X a , Or the f,ity ot'D nton Yes or No', in which? Yes, our physical presence within the State of Texas includes our regional office in Irving, as well as 35 child care centers we directly manage throughout the State. 8, Pia -13sc as -ovi e a detailed h tb of Bali' . 1-n-oducts andlor sciiliccs that your coinj_)any n-o ark We offer a variety of services that address working families' needs throughout all of life's key stages. These programs are customized to meet each client's unique needs and business goals. Our suite of services includes: uuui °i Urgent and planned back up child and adult /elder carp, progrann"ns: provides nationwide dedicated or consortium back -up child care centers; back -up programs integrated into full- service centers; center -based and in -home back -up care services for employees' children and their adult relatives; sick child care services; travel care programs; infant transition programs; and conference care services. uuuuu Regular and ongoing child and adult /elder carp, and fann"nily support discounts: helps employees balance all of their work /life demands through a comprehensive offering that includes priority access and discounted tuition rates to child care centers as well as access to a database where employees can find and secure additional services including nannies, caregivers, pet care, senior care consulting, housekeeping needs, and tutoring /test preparation discounts. On site or near site chid care, centers: provides dedicated child care centers; centers open to community but offering priority enrollment to client populations; centers are customized to meet the needs of the organization and community and to reflect and respond to the unique culture of the sponsoring organization. College Coach: provides employees with the assistance they need to start their children's education out on the right foot and prepare them for the college admission process; our platform includes workshops, expert counseling, and web -based assistance to ensure employees and their families reach their academic goals. Horizons Workli:arce Consulting Services: helps our clients craft strategies and implement programs that increase the effectiveness of their people practices, support the evolving needs of working parents, and help achieve business goals, including feasibility and needs assessments; work /life strategic planning; return -on- investment analyses; outsourced work /life management; and child care center effectiveness audits. Bright Horizons Spe,cial Needs: provides expert guidance through the education maze, helping to minimize associated employee productivity losses. An average of 10% of working parents care for a child with special or exceptional needs, and on average, these working parents lose five hours per work week to navigating their children's educational needs. Most families remain unaware that the same services they utilize through outside sources are available and sometimes better suited to be provided (and funded) through schools. By receiving support and assistance in all areas — identifying issues, managing processes, and advocating for a child — employees are empowered to make effective choices and avoid costly missteps that increase insurance costs. °2015 Bright Horizons Family Solutions LLC 5 The City of Denton Denton, Texas EYARRVT 3 a: d. ssist: helps companies and their employees maximize their education assistance resources through individualized education and financial advising, expert administration and policy compliance, and a robust network of fully accredited educational institutions. As the leading provider of comprehensive managed education solutions, EdAssist aligns tuition assistance spending with strategic talent needs to drive business outcomes. 1:,oanRepay; gives employers a powerful way to recruit, compensate, and retain employees by offering a financial benefit that helps pay down their student loan debt during their tenure with the company. This unique solution includes policy development led by the LoanRepay team, employee financial advising, and an intuitive, web -based administration and user platform. Private c.:ger ne nary schools: provides children with supportive learning environments and dynamic educational experiences that enable them to achieve academic success and develop personal responsibility and integrity. Parent support services: supports the work /life needs of parents, including seminars, parent discussion groups, "lunch- and - learn" sessions, and resource libraries filled with books, videos, and magazines focused on parenting, child development, and achieving work /life balance. Schoc: lsoLJ'r prograr ns; helps employees balance workplace demands with the needs and schedules of their school -age children such as programs when schools are closed due to inclement weather, holidays, semester and summer breaks, and before - and after- school programs. 9. is your a on,1 surly flied or been een taained i a aaay.ht' g afion iraaraxhlh your coinj zany Barad the anra(-a° sera as Contract act anrrf ar1a the Kist .tiaras yeaaa °an under your cui —rent coinj_)aaaay naalne or ally aaaher cons aa,aaay naaln 11' so, . n°aaari' e detaJ& of the issues and a °eanaaiam'onY Y' d3v aJ1 a /rA-, Conducting business in North America, Europe, and India, with approximately than 26,000 employees providing employer- sponsored child care and early education programs for more than 900 clients, in the normal course of business Bright Horizons does occasionally become involved in litigation. However, there are no judgments, actions, or liabilities, either past or present, which would have any material effect on our ability to conduct business or impact the terms of an agreement with the City of Denton. Our open classrooms, low caregiver -to- dependent ratios, stringent policies and procedures, and designation as a mandated reporter have kept claims to a minimum, while also ensuring children's and dependents' health and safety. In addition, our comprehensive reporting and incident follow -up processes have kept claims and litigation at a level that is well below expectations in most other businesses. Have you evel- defiaulted on or la-zled to con'r aia -fay as contract sees aw °gasses° a ~assent Caaxaa aaaray naalne or aara�r aaa°hel- coma aaara�r naaln W Via, 14711c re and why Gi''vc main and a°a- ia- sesame rauinba�a° of , amass r. No, we have never had a contract terminated for default or failed to complete a contract during the contract term. °2015 Bright Horizons Family Solutions LLC 6 The City of Denton Denton, Texas EYAHRIVT 3 11. ffavc you navel- had as c-axnfr act a°a- 17ninaataaai by the aarnel -i . 11' so, Y47here and why Gi'vc na inc aand lama- 1 -dione aaaaxtrbel- (i) of ., Y47n aa° (i), .'? Has your coinj_aaa y braiaA -rose ated an 1,inj_do raaaa Hed0th and Na.iiaa°y r(.Wr ain coinj -)h.' a at Yantis 29 (111,"1? 191 "Gencral 111dusay fda ddards" as nailor 29 (111, 19,7 "Gaanel -aal Construction Sfdanddards "aax they al-q-)�iV to Your (1,01111aaa ay'x a ~aastoinaaayaactiaritiaaxi IN &9 toc leve1=1&v We have implemented steps to comply with all applicable Occupational Safety and Health Administration regulations and have robust safety procedures and conduct employee trainings to secure the well-being of employees and children in our care. V. idea- ' ia.,xaax t"i'ovel- ninent Code Section M52002- Non-resident iddel- , 7i-xas hiY471-n-ohibits c4ti'a and axaher governinental units a -oin aaaaraardia Contracts to as 1011- a °aaxident 11jin aanhsx the aarnount ol'xaach as bid is lower than the lowest bid by as 7 i -xaax resident by the aaxarount the a °aaai to underbid iaa a°iaa- sasses- a °exiaiaaaat bi'aiaiaaa°x'xa°aaa°e, .aa aaa °aiaaa° to inaalte this aiefel"x 11"naati0aaY Ph'13xc. aroilide the aaainc :address., a nd Vion a aauinbel. -ofi aa, cS1_)ondita .iia°xar'x iaaraaa iia 'a iMice aal'buxiaaaaxx: Our headquarters is located at 200 Talcott Avenue South, Watertown, MA 02472, (617) 673 -8000, and our regional office is located at 9901 E. Valley Ranch Parkway, Suite 2015, Irving, TX 75063, (214) 710 -2791. b. f:;oinj_aaan x inaaiaaar' m ty iMaa~-aa aaiW baaxiaaaaxxmm Same as 13.a. °2015 Bright Horizons Family Solutions LLC 7 The City of Denton Denton, Texas EYAHRVT 3 Same as 13.a. 14. Provide detaJ& to 1 �a, incahi hW c.,Wir(111CaI d3lid defively. The City of Denton's interest in providing dependent care programs came out of the Innovation Program where employees identified, researched, and recommended programs to improve service process and employee engagement, among other goals. You are not alone in identifying dependent care supports as a key employee need, but it is more than that. With the current and worsening labor shortage, forward thinking organizations are turning to dependent care programs to differentiate themselves from the their labor competition. Of those named to FORTUNE Magazine's "100 Best Companies to Work For," we support 53 organizations with work /life solutions, as well as 84 organizations named to Working Mother Magazine's "100 Best Companies for Working Mothers" Est. Our solution, Bright Horizons Care Advantage, will strengthen your benefits package to improve recruitment and retention efforts, engagement, resilience, overall employee well - being, and sustained productivity, and provide the business continuity required by your taxpayers. In addition, like most of North Texas, the City was hit hard with the icy conditions of last winter, and experts are predicting another eventful winter. Having your employees available to provide the critical services of your customers, and not worry about closed schools, child care centers, and caregivers' ability to provide back -up care is a service continuity issue. Personal challenges that distress employees, directly affect the City. Every employee manages — as best as he or she can — an array of personal and professional demands that include work schedules, deadlines, family life, child care, elder care, etc. When not properly managed or supported, these demands often increase employee stress and can take an enormous amount of time and thought to straighten out therefore, bandwidth is redirected to these issues, resulting in loss of engagement, loss of productivity, and increased absenteeism at work. Information released by the U.S. Bureau of Labor Statistics supports this — 2.8 million workdays are lost annually to unplanned absences — affecting the employee, the employer, and co- workers. However, employers who take action by implementing Bright Horizons Care Advantage increase employees' ability to manage life stressors. Compfianc.e with Spec.' m'cati ns, lm' , ,, eliab lily, rac.tevist c. to meet Stated or Implied Needs Based on our understanding of the City's goals, from multiple meetings as well as the Request for Proposal, we believe that we are the best partner for you. Bright Horizons Care Advantage is a one - stop solution that provides employees with a wide array of support services that facilitates balance of family and personal demands, thereby decreasing absenteeism and increasing the time and attention they can direct to work. What this means for you is providing an affordable benefit that meets employees' needs by getting them to work and empowering them to be productive and innovative, while allowing you the means to exceed resident expectations. This holistic dependent care strategy will ease your pain points by providing 100% coverage for meeting employees' life stressors and distractions. °2015 Bright Horizons Family Solutions LLC 8 The City of Denton Denton, Texas EYAHRIVT 3 Center -based (well) and in -home (well and " " " "" Membership to online national database mildly -ill) care for children (powered by Sittercity) of child and adult /elder caregivers, pet care, In -home care for adults /elders housekeeping needs Available throughout the U.S. regardless of iiiiiiiiii Access to YearsAhead senior care consulting employee's and dependent's location and elder care service referral (telephonic Telephonic, mobile, and online access and online) 1111° Fully staffed (90+ care consultants), award winning call center available 365/24/7 Care consultants remove burden by identifying and securing care options Supports business continuity through our add -on program Crisis Care Assist at no additional cost Up to XX uses per employee annually nominal copay Preferred enrollment with waived registration fee into community -based Bright Horizons- managed centers Tuition discounts available at select partner centers Discounted tutoring and test prep services through BrightStudy Unlimited use with user negotiating and bearing full cost of care Indic,ators of Probable Performanc.e Under Contract How does Bright Horizons Care Advantage differ from other programs marketed similarly to ours? Some providers can talk about what they can do, while others piece together different components to mimic our program. As the pioneers in employer- sponsored child and dependent care, we have been in business for almost three decades, and serve more than 900 clients representing a multitude of industries including government, higher education, healthcare, for - profit, and not - for - profit organizations. Locally, we provide the same services for 14 North Texas companies including Alliance Data, Santander, UT Southwestern, Parkland Hospital, Pioneer Natural Resources, and others. This has provided us with direct experience in customizing programs to fit clients' needs, a as well as the financial stability necessary to secure their trust in our ability to provide for them today and into the future. What does this mean for you? Only we can offer the City the most established and utilized back -up care service in the industry. With more than actual days of care provided in 2014, we have delivered more direct care than any other provider in the industry today. °2015 Bright Horizons Family Solutions LLC 9 The City of Denton Denton, Texas ENARRVT 3 Pvic.e, -1 otal Cost of Ownership The City is interested in a dependent care program that not only meets the minimum qualifications of the RFP, but is also affordable. We also encourage you to consider that the mark of a successful benefit program is also utilization. With Bright Horizons Care Advantage, your employees will have the ability to obtain 10 uses of urgent and planned back -up care for children and adult /elders for a nominal copay For all other needs, including nannies, senior care consultation, pet care, and housekeeping needs, they will have free membership to an online caregiver database (powered by Sittercity) with unlimited basic background checks. A dedicated account manager will monitor the program's success, and provide marketing information to increase employee knowledge of the service and utilization. At Bright Horizons, our core competency is providing the highest quality dependent care services, helping clients' employees achieve balance and overall improving our clients' bottom lines. We are confident that our comprehensive dependent care strategy, experience providing back -up care commitment to quality, and overall approach will benefit the City, your employees, and their families. 15. . roilide dctaai& on how Jia°Xaa Inects the a u ahlic- afion t ated in this 3113-in a, 7 he del aa& inus ° be c -oi j_)A -tcd on this . a rin,, and shafl not [)(,)I "I to another aiaacaaxa ent in the resl-wndelit's j_)roj_)osaL We have provided center -based back -up child care since 1992 — nearly 25 years! Over the years our back -up program has evolved — we started our nationwide back -up care program in 1998, and expanded it to include in home care options for children and adult /elders in 2006. Our program includes more than ), and is supported by our 24/7/365 award- winning call center, a back -up call center, online platform, and mobile app technology. 7711-ce () re i -a °vane . a °salsa navel- axarental clififies lass° the 1-n-oducts or crib' requested. . he f;ia°y Jas °a Ji a re i -a °ea c-e a -oln aaJW 1raai'1 "aa° Si/w. We provide back -up care for 12 government entities, all of whom are federal, and most of whom employ thousands of people. For our references regarding our services for similar sized organizations, as well as how we operate in the greater Dallas -Fort Worth Metroplex, we have provided reference information for the U.S. Department of the Treasury, UT Southwestern Medical Center at Dallas, and Plaza Medical Center (Fort Worth). °2015 Bright Horizons Family Solutions LLC 10 The City of Denton Denton, Texas ENARRVT 3 The tcs1_eexttdh 1ndi'ari'du al or businttcss must be ree i1°te reed in t/tte State of "ex as °� or the ( "Ounty ot, Deentextt, to 1- n- oari'e1e the lee °oducts or seee°w'c -cs re qui'e°eeel in t/tte so i'c4f ati''on', tatted the i'ndi'O'du al or busittcss must ha ITe tan i'c- cltSeee °ee 14Cqui',reee11)y the State to 1- n4ovi'dee any ste1111'CCS 14Cgeelred unfit -e° flu's c- ontact. We are licensed to do business in the State and have provided services in Texas since 1993. eelelel tate ol'Te xtas .li't -e nse d clulelt- tat °eelt /sleet° e- tae °ee .fat �'l�'ti'e , t rtel✓e e °let °e e�'eleet° °, The centers and in -home agencies that we partner with are licensed according to the states they operate in, including the centers we manage and our center -based and in -home network partners in Texas. Ileoili'e1e tt /1 three (1) sce°ari''c -cs, chi'le1 t ~taec cidee° t ~taec and 1-wt see°ari't ~ees to (,i'ty cinl -e oyce s in the North Texas area. The !,i'ty urr'll not tacc -clw 1- n- of -wstak that do not inttcleeelee tall three seee°ari't~ -ee needs. Bright Horizons Care Advantage offers all of these services, including supplementary services at no additional costs. Following is an overview of the additional services offered through Bright Horizons CareDirect for regular care solutions: mitts " -o y ed Ckifd Care Preferred enrollment at Bright Horizons centers weeks t ear subject center's epolicies /typically 6 Tuition discounts at partner centers � Caregivers for regular and � 'Illlllllllllllllll III )11 r � ., m ., t)°" non urgent adult and child of „� avid Hut:kta:t:p-5 care iiii�»>iuuinrrmumr�lpl111,1, (All ages - from infants through elders) "' Elder care planning support E(der Care Pfaivthty Support through Years Ahead and Long (Adults and elders) Term Solutions Pet Care, Care for pets 4M Discounted tutoring and test prep for all ages ,Subinifttal e1oceeincltts i°ttc- hieli°et to coveee° she ct, exh't~Jf at 'on 1,7n- c-1ch'sl, Attach- 11,1eertts -./,' and INlu'Zvf ), 1_wl- flit- inethod dews- ii/5eee1 in S111331ITTAL All submittal documents are included in our response, as requested in the RFP. °2015 Bright Horizons Family Solutions LLC 11 The City of Denton Denton, Texas ENAHUVT 3 I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3. '41 Bright Horizons Family Solutions LLC 10/28/15 Signature Company Date 16 j amz afi''on ai' iaaai�'i7a Safi' r� ° ✓ �a r °t t r� a, rovi' e a bj4c1'j_) J- sj_)cCti'arc oiW7rour org atli afi''on,,, bic-ludiiW your coinj_)ary's .histmy and cNI- Wal1'aCr Ctl as °o0' iirW. oc- c- asi'on al,, and aanlMinne vital° erlc y b aa- r -aa a c- arc. /roc -hide bi your est"ar afi'0r1 your a NI- wir'1('11 e lvoilkbw 14,141 governinellf Bright Horizons has a vibrant history that has always been focused on developing and managing employer- sponsored dependent care programs and work /life solutions. Founded about 30 years ago, we are recognized as the pioneer of employer- sponsored child care services. Our founders', the husband -and -wife team of Roger Brown and Linda Mason, mission was to provide innovative programs that help children, families, and employers work together to be their very best. They communicated the mission, vision, and values of the start -up company so effectively that clients and the best and brightest talent in the field of early childhood education partnered with the company. Our practical experience with employer- sponsored child care and our ongoing research into work /life issues enabled us to develop a unique approach. As our client partnerships evolved and our resources deepened, our scope of services expanded to meet the broader needs of employers and their workforces. Experience Providing including the development of back -up dependent care Expo ienc Dependent Care: ry and support for all the household needs of employees. uuuuu Bright Horizons has played a significant role in the 724 clients from all industries and development of the concept of back -up dependent care. employee sees We began designing mildly -ill child care programs for 1 government entitles clients in 1987 and opened our first mildly -ill child care uuuuu 33 with employee counts of 1,31111--- - program in 1989. Also in 1989, we were selected to 1,600 manage the first -ever employer- sponsored back -up care program for Boston -based law firm Goodwin Procter. In 1992, we not only developed our first back -up care program within a full- service center, but also opened the first dedicated back -up care center in the country for our long -time partner, JPMorgan Chase, for whom we now operate 15 dedicated back -up care programs. We were the first company to achieve accreditation in a back -up care center from the National Association for the Education of Young Children ( "NAEYC "). As the years have progressed, workforce dynamics have continued to shift. Working families are increasingly seeing a new kind of caregiver stress, not only caring for children, but also for aging parents and family members. Care is often needed outside traditional center -based operating hours, and distributed workforces and family members have widened the geographic demand for support. As the workplace landscape has evolved, Bright Horizons has adapted our offerings to continue to meet the needs of the workforce. °2015 Bright Horizons Family Solutions LLC 12 The City of Denton Denton, Texas EYAHRVT 3 We started our nationwide network back -up care program in 1998, and in 2006, we created the Back - Up Care Advantage Program, adding in -home care options for children and adults /elders, as well as developing strategic partnerships with other quality providers to enhance the reach of our network of center -based care. Strategic acquisitions such as Work Options Group (a provider of nationwide back -up care with 17 years of experience), and Children's Choice Learning Centers (a national provider of employer- sponsored centers, many of which offer get -well suites for mildly -ill children), as well as our partnership with Sittercity, the leader in web - based, self - service dependent care, have strengthened the care capabilities of Bright Horizons. Today, our back -up care program covers more than lives. With a dedicated call center, employees can reserve care for their loved ones 24 hours per day, seven days per week, 365 days per year. In addition, the expansion of our service offerings now provides employees with access to proprietary technology that helps families self- select care solutions from afterschool care to pet care, as well as provides resources and benefits for full- service child care across the country. b. Desci4be a47 to t ith- remit' atesy a fi- in other b ac -girl-) care sel9lice 1 -n- llidel° , Reduced risk, high - quality providers, and availability of care. Only we can offer the City the most established and utilized back -up care service in the industry. With more than actual days of care provided in 2014, we have delivered more direct care than any other provider in the industry today. With that as the foundation of our expertise, we have highlighted the following additional differentiators: Dedicated gall Center: Dependent care is all about people. Many of our customers strongly prefer to someone live when making reservations — approximately 70% of all requests are made via the phone. Our 24/7/365 dedicated call center is staffed with more than 90 care consultants who guide employees through the entire process, from registration to reservation, and take on the responsibility of identifying care options and ultimately securing care. Care consultants are extensively screened for excellent customer service skills, adaptability, and technical aptitude; and trained on our services, policies, call- handling skills, processes, metrics, and our customer relationship management. Each care request is tracked, reviewed, and checked for quality control. Our performance in meeting call center effectiveness and efficiency metrics like these have resulted in our recognition as a BenchmarkPortal "Certified Call Center of Excellence" for the fifth consecutive year in 2015 (and named twice to their "Top 100 Call Center" list). ...,on.gevi y Providing Back Up Care: We have a vibrant history that has always been focused on developing and managing employer- sponsored dependent care programs and work /life solutions. Founded three decades ago, we are recognized as the pioneer of employer- sponsored child care services. As our client partnerships evolved and our resources deepened, our scope of services expanded to meet the broader needs of employers and their workforces including the development of back -up dependent care 26 years ago. Today, we provide back -up care to more than 724 clients and our program covers more than Financial. Stability: With a healthy balance sheet and strong cash flow position, we have uninterrupted year- over -year revenue, and adjusted EBITDA growth for each of the last 15 °2015 Bright Horizons Family Solutions LLC 13 The City of Denton Denton, Texas ENAHUVT 3 years despite broader macro- economic fluctuations. Our finance department and internal controls structure are designed and managed to comply with the requirements of Sarbanes- Oxley regulations, and we are public company, listed on the NYSE as BFAM. Consistent Leadership: With an average tenure of 21 years, our senior leadership is comprised of accomplished professionals who represent leading voices in education, business development, and positive people practices, tasked to ensure that we fulfill our mission. They provide counsel and expertise, shaping and enhancing educational strategies, programs, and systems in every center we manage. They command our customer service expectations and lead by example. 100(04 Coverage Nationwide: Bright Horizons' Care Advantage represents one of the broadest and deepest dependent care solutions with personalized care available 24/7/365. We have 100% coverage nationwide and offer a variety of care options to meet the needs and preferences of your families. We take the burden off employees in securing urgent back -up care for a child or adult /elder dependent, with our fully staffed call center, and we make it easy for employees to self - source care through Bright Horizons CareDirect to provide a fast and easy solution for all kinds of other family and pet care needs. In addition, Bright Horizons CareDirect also provides employees with senior care consulting, discounted access to many of our network partners' full- service child care centers, and priority enrollment to select Bright Horizons' child care centers. Hugh ":I:`t: uch ccessi ili y; In addition to our dedicated call center, employees can request care electronically through two avenues. First, employees can access a customized landing page where they are directed to the program for their current needs — either the Back -Up Care Advantage Program or the Bright Horizons CareDirect platform. They can register dependents and request care for urgent and planned back -up care through the Back -Up Care Advantage Program website, and the Bright Horizons CareDirect website makes it as easy as possible, providing tools that help employees define their care needs and narrow down their search. With the click of a button, employees can perform basic or advanced background check on potentials caregivers, read reviews, request references, or post )obs. Second, care can be requested and reserved via IPhone and Android devices, allowing users even greater choice in the palm of their hand. Network Partnership Quality Control: Our reputation is maintained by taking deliberate steps in regards to recruiting and screening partners who meet our stringent quality standard requirements. Once vetted by our provider relations team, they are invited to join our network. We support our network by providing training and resources to ensure that our expectations for quality continue to be met. In addition, we partner with select centers and in -home providers through our Priority Partner program. These Priority Partners are exclusive to Bright Horizons and are not available through any other back -up care program. In 2014, approximately 90% of care in our extended network took place through a Priority Partner. Dedicated Account Management ". earn; We provide one point of contact for service and support. The City will have a dedicated and experienced account management team, led by Client Relations Director Mandy Smith (located in Grapevine) that will provide on -going client support. She is supported by Vice President of Client Relations Jaime Nelson, who provides strategic oversight and account leadership. Our client relations directors work closely with our clients to ensure our programs meet or exceed their expectations. Business Continuity Support: Bright Horizons Care Advantage's business continuity add -on program, Crisis Care Assist, helps employers support their employees in times of crisis. When °2015 Bright Horizons Family Solutions LLC 14 The City of Denton Denton, Texas EYARRVT 3 triggered, we implement Crisis Care Assist within 24 hours, for a pre - determined duration of time. During a time of crisis, unexpected high demand for care can affect our network providers. This program gives employees the option of securing care on their own, whether through a licensed provider or personally arranged caregiver (i.e., relative, family friend, babysitter, etc.), and reimburses them for the cost, up to pre - determined amounts. The program also facilitates care any time of the day or night and for any duration necessary. Through this program, we have provided care for employees during some of the country's biggest natural disasters including the recent snow storms in the Northeast, Georgia's ice storms, Hurricanes Sandy and Irene, floods in Colorado, and tornadoes in Oklahoma. uuuuu Bright Horizons Carc,Direct Quality Assurance: nce: When a person applies to become a caregiver on the Sittercity website, Sittercity conducts a preliminary verification of the caregivers identity. This includes an identification check, a search against the national sex offender registry, and a human profile review. Employees can run unlimited basic background checks on any caregiver at no cost. The basic background check includes a search on name, current address, previous address, and social security number. The caregiver's profile indicates when a background check has been conducted. Supplementary checks are available at discounted pricing, including a motor vehicle record check and enhanced background checks. The database also makes it easy for families to read reviews from others who have used that caregiver, request and contact references, and filter potential caregivers for preferred qualities (such as experience caring for children with special needs, tutoring experience, etc.). The caregiver's profile indicates if an enhanced background check has been conducted, including the date completed, and this information is then available to other potential care recipients at no additional cost. In addition to these differentiators, we have included a provider comparison checklist to assist the City in identifying each competitor's abilities and evaluation of services, located in Appendix A. c% /radio - ate any chaiWcs in sellibir lea el-shi a the vast .11vc yc aa° , Bright Horizons brings to the City a team of experienced and tenured leaders. Our senior leadership is comprised of accomplished professionals who represent leading voices in education, business development, and positive people practices, tasked to ensure that we fulfill our mission. They provide counsel and expertise, shaping and enhancing educational strategies, programs, and systems in every center we manage. They command our customer service expectations and lead by example. With an average tenure of 21 years, our leaders have been integral to our evolution. Among our senior leadership team, we have experienced only a few changes that reflect life events and /or our company's growth: 201: After 23 years with the Company, COO and President Mary Ann Tocio retired at the beginning of Q3. At that time, Executive Vice President of U.S. Center Operations Mary Lou Burke- Afonso, an 18 -year Bright Horizons veteran, assumed overall leadership for center operations in North America, while Chief Development Officer Stephen Kramer has continued to lead our operations overseas and maintain his responsibility for the global growth strategy and the Back -Up and Educational Advising service lines. 2014: Stephen Kramer was promoted to Chief Development Officer (17 years with the Company), and Judy Oliva was promoted to Senior Vice President of Operations (24 years with the Company). °2015 Bright Horizons Family Solutions LLC 15 The City of Denton Denton, Texas EYAHRVT 3 201.0 and 2011: Planning for the retirement of Senior Vice President of Operations Jackie Legg began in 2010, with the identification of Leslie Spauier and Tammy Chuprevich to assume greater operational leadership responsibilities. Having successfully served as division vice presidents of operations divisions, Leslie and Tammy were promoted to our leadership team and began training for their roles as senior vice presidents over the course of the next year, culminating with Jackie's retirement at the end of 2011. Leslie assumed Jackie's oversight responsibilities for full- service center operations in the Western U.S., while Tammy began leading our full- service center operations teams in the Eastern U.S. This change enabled Susan Brenner to focus solely on Bright Horizons' education department. d. a na 'i our °axe: account xtraraa ca, lr chi i'ra . n aine .l'ocati'on and AlWth of a- 11,11 -do rinelat with gasses° organization zaaa°raara xa °aaari'rxa xaa ~caaaxrat xxraaraaaexxaexaa° .fin° a�xxrx�'aa�ra�a° an CI ate' Client Relations Director Mandy Smith will work closely with the City to tailor the program to meet employee needs, establish protocols for sustaining ongoing program flexibility and cost efficiencies, and help establish the City's strategic goals. She is located in Grapevine, Texas. As Client Relations Director, Mandy primary role is to partner with clients by fostering strategic relationships, and retaining and growing business through back -up care and College Coach services in Dallas, Houston, and Austin. Based in the DFW Metroplex, she has a strong background in account management, client relations, and customer service. Her previous work experience includes more than seven years at Iron Mountain in a variety of roles and more than two years at Beryl Health as an account manager. She graduated from the University of Texas at Arlington with a communications degree in public relations. 17 . r(,Wr axxr eta-Z aa, a rar ra eases ". xa °aa aaa a aa�axa 'axra aaxar . aaaaar 't best inects the needs o he 67ty rand i't Bright Horizons Care Advantage is a holistic dependent care strategy that eases clients' pain points by meeting employees' life stressors and distractions through two comprehensive avenues: uuu °° Urgent and p:larn led back up carp, fi:ar well and an"noderately ill children. and adults/elders (through the, l ack. -Uja Care A n`d ma 47e .'rQ47rarn): This meets the needs of drop -in care, emergency back -up care, and sick child care. Taking the burden off the user, this program offers telephonic and online access to our high quality network of child care centers and in -home agencies, ensuring that your employees get to work on time and stress -free. This program is employer - subsidized and easy to access, so employees use it when they need it employees pay only a modest co -pay for care and are provided 10 annual uses depending on your choice. — A key metric of any dependent back -up care program's success is utilization. When organizations bear the majority of the cost of care and require families to pay nominal co- pays, the program is likely to see higher utilization. Conversely, when employees are expected to bear the full cost of care or high co -pays, the program is less likely to be utilized as they may be encouraged to stay home rather than return to work. °2015 Bright Horizons Family Solutions LLC 16 The City of Denton Denton, Texas — We recommend EYAHRIVT 3 families a nominal co -nav of Additional charges apply for medical care. Co -pays are collected through the call center via credit card, debit card, or electronic bank account withdrawal (EFT), and are charged the day after care is provided. uuu °° Ongoing arnd :long term services for children., adults/elders, and pets (through Bright Horizons CareL irect): This program offers access to an online national database (powered by Sittercity) of child and adult /elder caregivers; pet care; senior care consulting; and homework and tutoring assistance. In addition, Bright Horizons CareDirect helps connect your employees with quality care through preferred access into community -based Bright Horizons centers, and discounts for a variety of family supports. Because the cost of care is decided on and paid for by families, access is unlimited. — Full time child carp, tuition. discounts 1mo1^, Registration fee credit at Bright Horizons centers after 30 days of enrollment (up to $250 value) Imo^ Up to 10% family discount (for children 2 years and older); available at hundreds of participating partner child care centers — Home life, support 1mo1^, Pet care Imo. Housekeeping Tutoring and test prep discounts through Bri htStudy 1mo1^, Discounted tutoring and test prep for students of all ages 1mo1^, Up to 10% off ACT, SAT, PSAT, and AP exam instructions and practice tests �mo�^ Flexible online and in- person options �mo�^ Personalized action plans to meet academic goals 1mo1^, Assistance in academic subjects Imo^ From Revolution Prep and College Nannies and Tutors — Adult/elder support resources (Years .Ahead) Imo^ Self- service website offering an elder care assessment tool, educational content about elder issues, and resource and referral options Imo^ Free live telephonic consultation by Senior Care Advisors — Long term elder carp, discounts 1mo1^, Discounted consultation and resources Imo ^, Telephonic assessment with a Care Coach �mo�^ In- person elder care evaluation and assessment �mo�^ Elder care planning resulting in a custom long -term care plan �mo�^ Follow -up care consultation °2015 Bright Horizons Family Solutions LLC 17 The City of Denton Denton, Texas EYARRVT 3 Imo ^, Access to online knowledge base through Long Term Solutions Whether your employees are experiencing a breakdown in their normal child care, looking for an after- school sitter, need a companion for an aging loved one, seeking someone to walk the dog, or are looking for help finding or affording regular child care—we are here to help. b. t rl t t t x'(111 (I I 117PA-Incliti vW s7r 111"ar n- ('Wrains fin- of avl ati'ons. Providing back -up care for 724 clients, we have managed the reservation process, consulted on preferences, and placed more than two million children and adult /elders in care arrangements since 2006. This experience provides us with a unique understanding of the dynamics, challenges, and opportunities that shape the industry. c., 17esc-ilhe the c' arc ol- W111oils and neta o4i ooh -red to our a inj- doyce )oj_)u hati'on'9 h hidit tttc al5i'liiy to meat the 11ceds olWour wo4ifin -c -c hi North Texas. Bright Horizons Care Advantage will provide your employees with dependent care services that best meets their needs and locations. Urgent and Nanned Back-Up Care (Cki(d and Adu(VE(der) For urgent and planned back -up care needs, the Back -Up Care Advantage Program leverages an exclusive, nationwide network of options, including: Bright Horizons- managed child care and early education centers; high - quality partner centers; and trained, credentialed, and experienced in -home dependent care providers. Under the Back -Up Care Advantage Program, employees can search for centers online based on a self - selected mile radius from a designated zip code. Employees are also able to reach our dedicated call center 24 hours a day, seven days a week, 365 days a year. Ongoing and I..,. ... Teri Needs We also have exclusive partnership with Sittercity for ongoing and long -term need solutions. Through Bright Horizons CareDirect, your employees have unlimited access to an online national caregiver database including child care sitters and nannies, adult /elder caregivers, pet care, homework assistance, and housekeeping services. °2015 Bright Horizons Family Solutions LLC 18 Pet; care services include pet; sitters, groomers, trainers, and personalized care for dogs, cats, 'birds, fish, horses, farm animals, reptiles/ amphibians, exotic pegs, and small mammals. The City of Denton Denton, Texas Bright Horizons- Partner Centers In -Home & Managed Centers Nanny Agencies Ages served Infants– School -Age Infants– School -Age Infants – Adults Types of services Well Well Well and Mildly Ill Types of care settings Center Center Home Number of locations Under the Back -Up Care Advantage Program, employees can search for centers online based on a self - selected mile radius from a designated zip code. Employees are also able to reach our dedicated call center 24 hours a day, seven days a week, 365 days a year. Ongoing and I..,. ... Teri Needs We also have exclusive partnership with Sittercity for ongoing and long -term need solutions. Through Bright Horizons CareDirect, your employees have unlimited access to an online national caregiver database including child care sitters and nannies, adult /elder caregivers, pet care, homework assistance, and housekeeping services. °2015 Bright Horizons Family Solutions LLC 18 Pet; care services include pet; sitters, groomers, trainers, and personalized care for dogs, cats, 'birds, fish, horses, farm animals, reptiles/ amphibians, exotic pegs, and small mammals. The City of Denton Denton, Texas ENARRIVT 3 The advanced matchmaking technology provides direct on -line access to more than three million caregivers, 24 hours a day, 365 days a year. This service enables individuals to self - select caregivers that have the unique qualities they need. In addition, our program provides a financial savings to employees with free basic background checks and discounts off additional screening options. Access to this database costs $140 a year to the general public, so providing free, unlimited use for City employees is a valuable benefit. Also available through Bright Horizons CareDirect, Years Abead is an adult /elder care self - service website offering an elder care assessment tool, educational content to help families navigate eldercare issues and resources and care referral options through Sittercity. Years Abead also includes free live telephonic consultation by Senior Care Advisors who can work with employees and refer care seekers to its nationwide network of in -home and facility -based agencies that offer elder care services. The network includes in -home heath care options, independent living facilities, assisted living facilities, memory care, and nursing homes. The additional value of our center, in -home agencies, and Sittercity partnerships, is the ability to provide the most robust coverage and depth of dependent care services in the employer- sponsored care industry, providing 100% coverage for City families nationwide. ti. Detail' yttur 1- - °cows fttt° °t ~t °ati'tita , sa lcctiita , and sc- reetaitta bat- a -tt a at -tort et°s° .f fin- your netaa o4k.. /tai l'ude a y otWo4ta tr airaitra and sul-y- rt you xtry ftt a - ovi''de to your tactivoi a, To ensure the quality of our network, we employ a team of provider relations specialists who are dedicated to recruiting, credentialing, screening, and monitoring Bright Horizons has exclusive providers. We look for providers that share our partnerships with n.rr;any of our commitment to quality, perform extensive reviews to p;artraer providers and 90% of all ensure that background checks and screening of all lb ack -u:up care use in 201.4 occurred potential caregivers are in line with our expectations and 'With providers exclusive to us. local licensing requirements, and then consistently monitor the network for performance. All providers are contracted directly with Bright Horizons, many exclusively. In the event we identify areas where our caregiver supply is not sufficient to meet client demand, our dedicated provider recruitment team is engaged to ensure providers are recruited and added to meet needs. For the provision of in -home care services across the country, we only work with in -home or nanny agencies that employ their own caregivers and follow industry standards for background checks, credentialing, and training. For center -based care, our network is comprised of Bright Horizons' high - quality centers, NAEYC- accredited centers operated by other providers, and centers that operate at teacher /child ratios and with teacher qualifications that could be accredited by NAEYC. All of these centers must conform to local licensing requirements for background checks and screening of criminal history, etc. All providers in the network are required to submit valid licenses and certificates of the insurance they carry. °2015 Bright Horizons Family Solutions LLC 19 The City of Denton Denton, Texas ENAHUVT 3 Once providers are thoroughly screened, confirmed, and under contract, we remain in close contact with them for ongoing monitoring using a variety of methods to ensure high- quality experiences every time employees use the program. These include: Yearly documentation updates associated with licensure, insurance, background checks, etc. Training opportunities for center directors and their employees. Distribution of monthly newsletter including tips, best practice case studies, notifications of upcoming busy seasons, client promotions, etc. Online self - service presentations on training, program updates, new clients, and best practices. 1111° Follow -up on employee evaluations, suggesting training or other corrective actions as needed. Years of experience understanding the nuances of providing employer- sponsored back -up care has allowed us to develop proprietary training modules to ensure that our provider - partners are knowledgeable and able to provide high- quality back -up care to our clients and their employees. Our training modules include: " " " "" Specification of center qualifications °11 "" Back -up care policies and procedures Center intake and processing requirements/ expectations of families Back -up caregiver qualifications, credentialing, and screening Positive caregiving behaviors ° ° ° °° In -home care expectations of families Staff preparation for positive integration of ° ° ° °° Nuances of providing back -up care for the child into the classroom children, adults, or elders ° ° ° °° Reporting requirements " " " "" Service level expectations ° ° ° °° Reporting requirements " " " "" Service level expectations Passing score on the Bright Horizons " " " "" Passing score on the Bright Horizons competency exam competency exam c. Based on your Awoyvlc v of our ndusa:v a?ita °otWh this F , indic- ate aaritea°hel- you ii -tai the f,ity would benefif fi -oln exPl l'11 oa°hel- 147o /ii'ii- j_)r(.Wr;11nS not inchided in this While federal government entities have started providing dependent care solutions for their employees, only progressive municipal entities (such as the City) are beginning to start the process. There are a few work /life programs that we believe will benefit not only you, but your employees as well. Previously described on pages 5 and 6, these programs include a full- service child care center dedicated to support the needs of City employees and address the lack of high- quality care in °2015 Bright Horizons Family Solutions LLC 20 The City of Denton Denton, Texas EYAHRVT 3 Denton, tuition reimbursement management through EdAssist, and LoanRepay services. In addition, you also have the ability to enhance the Bright Horizons Care Advantage program by including educational assistance and advising through College Coach and support for children with special needs, for an additional cost. l It t ~xr xt J txtxx° t x arJ't t xxxodel rand the axtxxxrJ el" txf arJ 1 ts JxxCltxded in the xnodt -1, hichide c,o t xa t cJ.' ated fin- visits that exceed the xnodt -l: For urgent and planned back -up care, employees will have annual uses. Because this care is employer- sponsored, there is a nominal co pay of for in -home child and adult /elder care. If an employee has met their use allowance, but are still in need of care, the City can allow extra uses, which will cost the same co -pay for the employee, and count against your total uses. For all other care, employees have unlimited access to our online caregiver database (powered by Sittercity), where they can post jobs /search caregivers for care needed (child, adult /elder, and pet), negotiate, and pay for the cost of care. As described in the pricing sheet, you will have total uses of back- up care per year and unlimited usages of the Bright Horizons CareDirect program resources. 8, f,"hent elxations/xlJt xa, Desc- 1,115c Jxtxttr Your oig axxilxation 147111 In axxxa e flit, ac'c'ount and the 1- n- ol- )osetJ Jae °tx x °texts, . xxcl ide ixx.tbrin ation about the systeins xaxxtJlor Inechanisins that Y47411 be a t,d to xxrtxraJ'for flit. Jtx °tx x °;un. Bright Horizons makes management of the selected programs as easy, streamlined, and effective as possible. We will work closely with the City to establish ongoing and consistent communications, and tailor the program to meet your employees' needs and to establish protocols for sustaining ongoing program flexibility and cost efficiencies. We will provide you with a single point of contact (Client Relations Director Mandy Smith) for customer service, and support your program with robust teams of experts in implementation. Beginning with the service launch and throughout the relationship, the client relations director will serve as the single point of contact and ensure that your needs are met and concerns are addressed on an ongoing basis. We will roll out the program including establishing eligibility procedures, website development, training human resources teams, and developing appropriate employee communications to announce the new benefit. Once the program is established, we will develop a customized, the City - approved marketing plan to ensure your employees are aware of the program as needs arise. Mandy will then establish a schedule for regular reporting and meetings. These meetings can occur as frequently as desired and will vary from on -site meetings to teleconferences. Typically, we collaborate with a primary client liaison, appointed by the City, to set objectives and expectations for the program, utilization reporting, development and implementation of ongoing marketing strategies, and identification of possible training opportunities to help key management staff to better understand and promote the value of the benefit. °2015 Bright Horizons Family Solutions LLC 21 The City of Denton Denton, Texas EYAHRVT 3 Program Imp(ementation Our process includes an initial project kick -off meeting, in which your representatives meet with our project team to begin to customize a comprehensive and collaborative timeline and marketing approach for the launch of your new dependent care program. The implementation team, led by Mandy, will collaborate with you to ensure a smooth, strong start to the program. This process includes six areas of concentration: 1:T annd r daT inistratio n: eligibility file creation and transmission, registration process, employer portal set -up, invoicing procedures, and contracting process (as applicable to selected programs) Marketing: creating marketing plans to promote the program 1111° Training: creating a training plan to ensure appropriate human resource contacts and other key personnel are well- versed in the program offerings Public Relations: coordination of external communication efforts to highlight your provision of these innovative employee benefits Goal. Se,ttu.:n. g: coordination between you and our client relations team to ensure the success of the program on an ongoing basis is measured and managed appropriately On an ongoing basis, the City will be provided with timely, topical marketing materials for use in promoting Bright Horizons Care Advantage. b. l esc-iihe the rel- as l 11 1W . a - oc- esses Your 01- gaaay11"W1,aata 144/1 aatllyle to C011,axaraaaai'c- att ba.lbrin ati'on to the (Ity. a °ovi''de s ainj —)h- el wrts. We will provide utilization reports for Back -Up Care Advantage Program services to the City on a monthly basis, and an annual review of overall Bright Horizons Care Advantage utilization. Our proprietary management information system facilitates sophisticated, advanced tracking of data and flexible reporting With an extensive list of data elements available, we are able to analyze registration and demand (utilization, cancellations, and turn - aways) by many factors including provider, location, age mix; line of business; job title or category; as well as by peak and non - peak time periods. Reports are created to show detailed utilization happening in each component of the program (center -based care, in -home care, mildly -ill care, child care, adult /elder care, etc.), so you can fully understand how, where, and why the program is utilized. Because our system compares historical use by employees' reasons for use, it allows us to provide you with accurate co -pay reporting. drom,ary� to n u a a N V1,a:: v�etw artareers iau 3 Strategy SeWaet �,'ip.ire 1: Monthly Back-Up Care 19dvantaA,,v Pr.oApwn? aztilizawtioaa reports Reports can be consolidated to show a variety of statistics and and ;ertm.ial reviews highught Bright 1�n>rizonas A ";yarn^ /1alvswnatwf,n^ uaswf,n^. data points for all components of the Back -Up Care Advantage Pro gvam for a given time period, as well as by program type or location. The City can request detailed, °2015 Bright Horizons Family Solutions LLC 22 The City of Denton Denton, Texas EYAHRIVT 3 specific information about current and past utilization of the program; our system is able to retrieve the information, analyze the data, and present it back to you in a straightforward, easy -to -read report. We will work with you to determine any additional types of information to be gathered, the frequency of the reports, and the protocol for gathering information to best meet the organization's needs and expectations. Additionally, you can request customized reports at any time. With many years of experience providing customized reports for national multi -site and network program clients, we are uniquely suited to provide you with accurate and timely information. See Appendix B for a sample, blind utilization report. c., ar c- ari5c Your aaa°gaaaail ati'on' n°aace .f n- ea°a- a°raaiaai' is and xaraiaataiaaiaag a-xardaairca user satistaction. Provide a eo ay ol'y ur standard satistacti"on suiiTcy sand yo r xaaaa t aec -vast chelit satistaction aatit (inchiditW the sc-ah- that is used to inc.3surc aa°i Faction A-vc& used the date the saes -v i' aaraa � aaxaa aka to ), One of the primary tools we use to monitor performance is our routine employee surveys. We conduct follow -up satisfaction surveys with all employees who utilize the Back -Up Care Advantage Program. Employees are sent a link to an online satisfaction survey. The survey questions capture information on the entire process: from making reservations through the care experience. Depending on the type of care they utilized, the employee is also asked to rate a variety of factors specific to their experience, such as: Quality of care provided Caregivers/ staff performance Care environment Responsiveness to inquiry Registration and reservation process Each survey is reviewed and the results are entered into a central database for analysis and evaluation. In 2014, 95% of users were satisfied/ extremely satisfied with the Back -Up Care Advantage Program, and 96% would recommend the Back -Up Care Advantage Program to a coworker. One survey respondent stated, "I think this is an extremely important benefit and has been incredibly valuable to me and my family. And, I know the care is top notch for my children when we need back -up. And the flexibility of options and locations is great." A copy of our customer satisfaction survey is in Appendix C. °2015 Bright Horizons Family Solutions LLC 23 The City of Denton Denton, Texas ENARRIVT 3 . 19. Adinim'strati'on aa, esc-ilhe the a- i1,11 -diyc e br re istr ati'aiii, i °eseliTaati' oil " and use ail' the When care is needed, City employees access a customized landing page where they are directed to the solution for their current dependent care needs and /or calla care consultant at our award - winning 24/7/365 call center to arrange care. The following is a screenshot of the landing page: Qmktai9d an,igi, M ere n%M i'.w'nw ii nr awwfu 'e"Wjvu w w.u�mmNUm arf rv�µrRm'* iMn4ev✓,pwi+a, M6 w.BAm rW4.W uv vim' ✓ &a xY�d usw�wnvW& ,re. m�m..m W.. r. oaaw+Wa' IDnvhrv:mn..m niwiraiuDneuf� wv , ,i. n iew✓,aluau ��ti w i. iii &wM�✓ 9r ✓,.m✓WO TWO aye✓ , o r,"'wrow,wi .ww mw/W",w✓ 0 F+w a q frv. I u w w +Pox Nw &a W n .41', IfI.4.114 "11141 twNx- rW ✓nrv. —11 on,.w „ ✓,�Ww .a„ „w.w ,rou�rc,a�W�*, m.:,a,��own�u��fl"�m ,��.e� � a��ii m�a;��w;di�a�,a.tirc a *rr,�oro ✓w..w.w ena,�e.� �,�✓mMrwaw «.av✓d, a w� »�e� . ✓.��a�; w «r� o�.���em � µ� «w ✓,��� oR a,�� yaw »�u�«��a�oao� v W,a »rm r✓ aw ✓waa�a rw� „sir Ro�u �^ wwNgncioW r�WmL9�`u lPmt',,;ay. /l J mry AI i� l 4 i / 9J f m ��,�e�✓� �e����«an� � wee MhG/✓��l$�.rw n rm 4 11"1"1"0 1„v , paamm)4 D✓✓ b"I fol fwWe VV e;$a;a>114011m: 4,4 ma�draxm�*� Ys�. °2015 Bright Horizons Family Solutions LLC 24 The City of Denton Denton, Texas EYAHRVT 3 The experience for securing care is as follows: Registration.: Employees are encouraged to register in advance for the program to ensure that their personal and family information is on file and they have received additional information about the program. We can help them register personally through our customer care center, or they can register online. Care Request: When employees need care for a specific instance for a child or adult /elder, they call our toll -free number or submit a request online. (Urgent requests are typically responded to within four hours.) If their need is for longer -term care, or they are seeking advice or resources for caring for their adult /elder dependents, they are directed to the appropriate online resource. iPhone and Android applications are also available to allow users even greater access. Below are sample screenshots of the back -up care mobile application: AY NAA A "AS �'o?fJWO'G;;7nF''?;01 STAY 61VrV0#'tS 141 W PFGN n,u IN% ibu R Fn � .Vmaw? 4r3r N% " „rM'✓,r: ' 0114 1 D �11Yntl% lr�.rio „r it �o vii ,. 9�' IN OCAt mmJV,X�pnmi,w # W'Ia s""r',''*41 Y.66'1.. �PM�n,�r�wr�� ^uouv��r,�wl ,�w�,e^�uuirim�or �Wm�i �xm�t ,ami� a +uw' %4�'Nw H,wpl�%AaP Consultation: Employees seeking urgent care resources speak with back -up care consultants who collect information about the person(s) needing care (name, age, location, special needs, etc.) and discuss the options and nuances of temporary care. Employees looking to self - select care leverage our proprietary matching technology that helps families find the care they need — whether that care is for a child, a pet, or their adult /elder. Search: Back -up care consultants search for appropriate and available urgent care providers (either center -based or in -home, depending on the situation) choosing from centers and agencies that have all partnered with Bright Horizons to provide an established quality of care. Employees seeking their own care needs utilize our online resources to search through potential caregivers and centers, narrowing the choices by filtering results and establishing preferences. Scheduling: The back -up care consultant presents employees with options, and then schedules urgent care needs, sending email confirmation of the arranged care. Employees self - selecting care review potential caregivers' qualifications, read reviews, perform background checks, and schedule interviews to determine which caregiver best suits their requirements, and then establish the care arrangement that works best for their needs. Education: Consultants and program websites equip employees with tips, checklists, and other resources to ensure successful care experiences, and additional education is available for particular types of care, such as assessing the care needs of adults /elders, or requesting consultation on those needs or potential care placements. °2015 Bright Horizons Family Solutions LLC 25 The City of Denton Denton, Texas EYAHRVT 3 Evaluation.: After care is provided, employees receive a request to complete an evaluation survey via email, requesting feedback on the program and the specific caregivers. Families using our self - selected care resources are encouraged to leave feedback for other families. f fey . Vione etaal Y47hea° ter caall are rec- i've by as edicaate caaf a- a��r�a°e - .loc-ation( houi-s of av a- ZhIbifi'fy to reach :a Tiara Bright Horizons owns and operates our own dedicated call center in Broomfield, Colorado, which is staffed with 90 trained consultants who locate and secure care, 24 hours a day, seven days a week, 365 days a year. Because all care requests at Bright Horizons are important, they are tracked, reviewed, and checked for quality control. We are proud of the success and accolades awarded to our primary call center in Broomfield, Colorado, including recognition by BenchmarkPortal as a "Certified Call Center of Excellence" for the fifth year in a row in 2015. We also contract with a back -up call center in Raleigh, North Carolina, to ensure business continuity in event of emergency or if demand exceeds our primary call center's capabilities (i.e., natural disaster, high volume times, etc.). We encourage you to call our reservation center at 877 -BH -CARES at any time to verify. b. 7a area to aar °a aiaaa a �a °a . Mara 'a aaara� a f =l as aaa . to aar , Customer care consultants are available 24/7/365 to ensure that we can be available for your employees whenever they need us. They will follow the same process as during business hours. c% esc -i4be the b3 Ado n rest- xra i )1hty .lbr a- 11,11 -do ce to secure c-dac 1/ci-sus Your o galli °" %ati Bright Horizons Care Advantage is designed so that the service can be custom - tailored to suit the City's particular needs and budget parameters. When care is needed, employees have two routes to request care. They can do so electronically or telephonically. If electronically, parents can access a customized landing page where they are directed to the program for their current needs — either the Back -Up Care Advantage Program or the Bright Horizons CareDirect platform. One of our unique competitive strengths is our award- winning customer contact center, which is staffed by trained back -up care consultants 24/7/365. Care consultants guide employees through the entire process, from registration to reservation, and take on the responsibility of identifying care options and ultimately securing care. Users who prefer to access back -up care resources online can do so at any time, including placing a request for care. However, industry research indicates that in urgent situations, families strongly prefer to speak "live" to a trained care representative. Year -to -date approximately one -third of our reservation requests are placed via the web, the rest are placed through our contact center. Smartphone technology allows users even greater choice in access. Our back -up care consultants ask questions to ensure we find the most appropriate caregiver for the needs of that family. They secure the care and confirm care with the employee. Co -pay methods are collected at the time of reservation and processed on the day of care to streamline the process. After care has been completed, employees receive a request to complete an evaluation survey via email, requesting feedback on the program and the specific caregivers. °2015 Bright Horizons Family Solutions LLC 26 The City of Denton Denton, Texas EYAHRVT 3 When employees have more time, and are looking for regular care needs, such as an after- school babysitter, a regular nanny, homework help, elder care resources, or a pet sitter, they log onto the Bright Horizons CareDirect website and are directed to the appropriate resource. Again, we make it as easy as possible, providing tools that help employees define their care needs and narrow down their search. With the click of a button, employees can perform basic or advanced background check on potentials caregivers, read reviews, request references, or post jobs. tail/ q Sava aarca ;agc abandoned c -afl aate , Our call center statistics related to the Back -Up Care Advantage Program in '�� Cl%l�aaa�t�ag °a, a� a- ar15a� Your a�a�xtrxwraat� �� a ~�aa°�'axva Wava and rnaaetbag taaa°a-gy, and the resourc-es Your org avai , �;at�'Oil as °axarie to aaawa °t these ean°t, Proilide xnaaeti ag Developing a customized, ongoing communication campaign and marketing strategy is a key component in providing a successful program. Client Relations Director Mandy Smith will collaborate with you to carefully develop a customized and comprehensive marketing plan to reach all the City employees. Recognizing that employers' participation in the Back -Up Care Advantage Program is a response to a need that directly impacts business each day, we have developed a streamlined process to quick -start the program. This plan will ensure that employees are aware of and understand the benefit, register for services easily and efficiently, and access services when back -up care is needed. Though this process has been standardized over time, it remains flexible to enable customization to meet your needs and preferences. °2015 Bright Horizons Family Solutions LLC 27 The City of Denton Denton, Texas EYAHRIVT 3 The marketing and communications plan will address: An overview of the tasks involved in rolling out the Back -Lp Care Advantage Program and scheduling of these steps ° ° ° °° Identification of appropriate modes and timing of employee communications Development of collateral to fully describe the available services and the process for accessing care Activities designed to build interest in the program, such as manager and employee presentations, registration assistance tables, center tours, and development of ongoing communication materials to promote the program including brochures, flyers, email announcements, posters, etc. ° ° ° °° Initiatives to secure advance registrations and promote employees' use of the service Development and distribution of messages for maximizing awareness of the Back -Up Care Advantage Program Provision of activities and ongoing program communications designed to sustain interest in and utilization of the program on an ongoing basis, such as: — Seasonal needs: marketing focused on particular times of the year — Events: participation in the City- hosted events such as benefit and health fairs — Feedback: from surveys administered after each use — Retention: efforts focused on customer satisfaction and sharing of success stories Sample marketing materials are located in Appendix D. b. Provide a ainj -)h- .Jai -('Wr ain I"117P a- Inentat "'IOva tiIinchneY vac -hid vag Acy inilestones and defiverabh- dates. Bright Horizons typically requires 60 days from contract signing to launch Bright Horizons Care Advantage. We will work closely with the City to ensure that the final timeline meets the identified ob)ectives. Our process includes an initial project kick -off meeting, in which your representatives meet with our project team to begin to customize a comprehensive and collaborative timeline and marketing approach for the launch your new back -up dependent care program. The following timeline summarizes the key milestones in the program launch. Please note that this is a sample only; a customized implementation timeline and marketing plan will be specifically designed for you upon the selection of Bright Horizons as the provider of choice. The actual timeline will be contingent upon a number of factors, including your specific needs and resources, the desired timeframe, and the final selection of service components. Key milestones are as follows: °2015 Bright Horizons Family Solutions LLC 28 The City of Denton Denton, Texas EM EM EYAHRIVT 3 21. JbA C 1 a ;Weinent ;grad QuahtyAssurance aa, a rasa sears° / ar i'raa c- onfinui'tylMin raa the sweat ot'a sweat. Bright Horizons provides layers of support, to ensure continued access to our programs and services by employees across the country. Our contact center is available 24/7/365 and we have a back -up contact center that also provides additional support as needed in Raleigh, North Carolina. In addition, we can assist the City in business continuity as an add -on to the Back -Up Care Advantage Program. Should you experience a state of emergency, such as full power outages, our program is available to offer a variety of care options to those "essential" employees that still need to report to work. Child care centers are available during regular business hours, or in -home care can be arranged in the home for these colleagues' children or even their adult /elder dependents. In addition, for emergencies that may require care when the greater community is affected, such as the ability for in- °2015 Bright Horizons Family Solutions LLC 29 The City of Denton Denton, Texas EYARRIVT 3 home caregivers to safely commute to a dependent's home, we offer an expanded level of service for clients who wish to opt -in to the coverage (at no additional charge): Crisis Care Assist. Crisis Care Assist is an add -on program that helps employers support their employees in times of crisis —their loved ones are cared for and your productivity remains high. When triggered, Bright Horizons implements Crisis Care Assist within 24 hours, for a pre - determined duration of time. During a time of crisis, unexpected high demand for care can affect our network providers. This program gives your employees the option of securing care one their own, whether through a licensed provider or personally arranged caregiver (i.e., relative, family friend, babysitter, etc.), and reimburses them for the cost, up to pre - determined amounts. The program also facilitates care any time of the day or night and for any duration necessary. When schools are forced to close, transportation is delayed, power outages are widespread, and housing is damaged, the effects on employee productivity and attendance have a drastic impact on your organization. Crisis Care Assist can be activated to support the back -up care needs of employees during: """"" National /local health emergencies (e.g., H1N1 pandemic) """"" Natural disasters (e.g., hurricanes, floods, wildfires, snowstorms) °°°°° Labor strikes (e.g., teacher strikes, public transportation outages) For example, in the wake of Hurricane Sandy, we provided important security allowing employees to utilize our emergency back -up child and elder care so they could go to work. This was especially important for employers that have mandatory reporting for certain members of their staff. During the storm and its lingering effects, we cared for children, families, and employees and helped ensure continuity for all of our extended family, meeting of all requests for care. The activation of our Crisis Care Assist emergency back -up care program allowed employees to immediately organize care for their dependents, while our network of Bright Horizons' child care centers provided the option for families to attend another center when theirs was impacted. g on t;&cs to err °axari'e iiaxnifi'a and c-hents with iris h -qu ahfy c -dare iilvi- , The safety and security of the dependents in our care is our first priority; therefore, the foundation of Bright Horizons Care Advantage is qualified and trusted providers. The steps we take to ensure qualified providers include: uuu°° ".I. "he B€ c -Uj_? Carc Advam.figc.PrQ47rarn: – For center -based care, our network is comprised of Bright Horizons' high - quality centers, NAEYC accredited centers operated by other providers, and centers that operate at teacher /child ratios and with teacher qualifications that could be accredited by NAEYC. All of these centers must conform to local licensing requirements for background checks and screening of criminal history, etc. All providers in the network are required to submit valid licenses and certificates of the insurance they carry. °2015 Bright Horizons Family Solutions LLC 30 The City of Denton Denton, Texas ENARRVT 3 – In -home agencies admitted into the extended network employ their own caregivers and conform to the regulatory requirements of the state in which they operate—including compliance with required staff credentials and background screenings. Staff credentials are governed in part by each state's standards and by agency policies. Background screening processes on all applicants can include, but is not necessarily limited to, the verification of identification through social security numbers, education, previous employment, professional references, and criminal records checks from the previous seven years. The Back -Up Care Advantage Program is the only program that offers exclusivity on both a center and in -home agency level. While all of our providers are known for providing high - quality service, many are shared resources with other back -up network program providers. Bright Horizons' Priority Partners work exclusively with Bright Horizons and do not participate in other networks. They are contractually required to meet stringent key performance indicators around fill rate, user satisfaction, overall performance (caregiver on time. no show. etc.). and responsiveness to service issues. – Our insurance program covers Bright Horizons and our clients for claims arising from the programs and supplements the coverage of the individual service providers. We also indemnify, defend, and hold harmless our clients from liabilities arising out of Back -Up Care Advantage Program operations. uuu °° Bright Horizons CareDi.rect: – When a person applies to become a caregiver on the Sittercity website, Sittercity conducts a preliminary verification on the applicant. This includes an identification check, a search against the national sex offender registry, and a human profile review. – City employees can run unlimited basic background checks on CraVw,eurrv��rm� 4x�ac1� „g,r "�¢mw�a�u� � "�u�rm=!k� any caregiver at no cost. The basic background check includes a search on name, current address, previous address, and social f�� Bask Sackground 0imick security number. The caregiver's profile has an icon that indicates when a background check has been conducted. M ot rarVrihN4Ur Rec wi, ss Chvim k ft ,r P. n – Supplementary checks are available at discounted pricing to the employee at the click of a button, including a motor vehicle record check and enhanced background checks. The database also makes it easy for families to read reviews from others who have used that caregiver, request and contact references, and screen potential caregivers for preferred qualities (such as experience caring for children with special needs, tutoring experience, etc.). The caregiver's profile indicates if an enhanced background check has been conducted, including the date completed, and this information is then available to other potential care recipients at no additional cost. Qualified, trusted providers are a key component to the success of the Back -Up Care Advantage Program. Unlike many providers, Bright Horizons actually operates 400 of the centers in our network, affording us a unique perspective on the realities and expectations of providing care to °2015 Bright Horizons Family Solutions LLC 31 The City of Denton Denton, Texas ENARRVT 3 children in unfamiliar environments. We have established standards and identify providers that share these standards to contract with us and provide services within our network. Child care centers admitted into the Back -Up Care Advantage Program extended network must be licensed and in good standing to ensure that the center complies with the applicable staff credentials and required criminal background screenings. Staff at each child care center are employed directly by the center. Background screening provided on all applicants can include, but is not necessarily limited to verification of identification, education, previous employment, professional references, and criminal records checks. In -home agencies admitted into the Back -Up Care Advantage Program extended network have been identified as conforming to the regulatory requirements of the state in which they operate, including compliance with required staff credentials and background screenings. Staff credentials are governed in part by each state's standards and by agency policies. We require in -home care agencies to validate their hiring practices and specifically outline the following: background screening process, medical exams, proof of credentials and thorough employment reference verifications. Background screening provided on all applicants can include, but is not necessarily limited to verification of identification, education, previous employment, professional references and criminal records checks. The following chart outlines the criteria required for child and adult care providers through the back -up care program: Minimum background education and work experience with relevant populations and /or age groups Possess a combination of in- depth training in early childhood education and hands -on experience working with young children. At a minimum, caregivers have appropriate training credentials and personal characteristics for working with children as outlined by NAEYCi and /or required by child care licensing (where more stringent). Caregivers responsible for supervision of a group of children are required to have child development associate (CDA) credentials or associate degrees in early childhood education /child development. Education and work experience are regulated and dependent upon each state's licensing standards, and are reflective of individual staff members' positions. Specific information concerning caregivers' education and work experience is required as part of the child care center licensing application, and is verified during licensing visits. Documentation is required for ongoing participation in the Back - Up Care Advantage Program network. Conform to regulatory requirements of the state in which they operate, including employed caregivers' compliance with education and work experience requirements. Determined in part by the type of services provided (e.g., skilled medical care). Documentation is required for ongoing participation in the Back - Up Care Advantage Program network. 1 NAEYC is the nation's leading agency providing independent verification of programmatic quality. NAEYC accreditation is the most highly regarded "stamp of quality" that an early childhood °2015 Bright Horizons Family Solutions LLC 32 The City of Denton Denton, Texas Continuing education requirements First aid /medical training Safety training Child /elder abuse and neglect training Language and cultural proficiency Requirements for caring for individuals with special needs EYAHRVT 3 A minimum of 20 hours of related training each year, with specific focus in the area of back -up child care. Comprehensive, ongoing training and education is provided through Bright Horizons online training system, staff meetings, workshops, outside training seminars, and other venues. Centers staffed by employees trained in CPR and First Aid at all times. Provided as part of annual training program. Annual training provided. Documentation is secured in employees' personnel records. Provision of ongoing professional education provided, as required by specific state regulatory agencies. Documentation of training is required for ongoing participation in the Back -Up Care Advantage Program network. Centers staffed by employees trained in CPR and First Aid at all times. Ongoing safety training provided. Annual training provided as required by state licensing and /or center Policy. Must be able to communicate I Must be able to in English. Diversity awareness training completed within first year of employment. Training provided during orientation, with ongoing training provided on an annual basis. communicate in English, unless geographic and /or cultural variations dictate otherwise. Caregiver training for working with individuals with special needs provided, as required by specific state regulatory agencies. Provision of ongoing professional education provided, as required by specific state regulatory agencies. Training documentation is required for ongoing participation in the network. CPR and First Aid training required. Ongoing safety training provided. Annual training provided as required by state licensing and /or agency policy. Must be able to communicate in English unless geographic and /or cultural variations dictate otherwise. Caregivers' training for working with special needs is determined in part by the type of services provided (e.g., skilled medical care) in conformance with regulatory requirements of the state in which agency operates. Through Sittercity's caregiver database, employees can search for and "contract" directly with potential caregivers. Using the Sittercity tools, your employees looking for care are able to connect with an extensive list of caregivers — for child care and adult /elder care, as well as pet care. Through the easy to navigate and highly intuitive website functionality, families search for, and make contact with the potential caregivers that the family determines will meet their specific needs. program can receive. All eligible Bright Horizons — managed centers (must be open for at least one year) have already obtained or are working toward receiving this accreditation. °2015 Bright Horizons Family Solutions LLC 33 The City of Denton Denton, Texas EYARRIVT 3 Sittercity provides supportive tools and materials to help the employee conduct the process through their online Trust and Safety Center. This tool includes: Step -by -step instructions for hiring the right caregiver Important interview questions for caregivers Tips for meeting a caregiver in advance Instructions for using Sittercity's background screening options Tips for checking caregiver references Sittercity conducts a preliminary verification on caregiver applicants and employees have the option run unlimited basic background checks at no cost and supplementary background checks are available at a discounted price. Employees can also read caregiver reviews from other users. There is continuous monitoring of the caregivers on the site through the national sex offender registry. Issues are monitored by Sittercity and Bright Horizons is made aware of issues resulting from the City's use of the program. We have a customer issue resolution process in place to monitor and, if necessary, respond to issues. Sittercity reserves the right to remove caregivers from the online database as a result of any issues. 5 out of S stars a Z ta r Rea4 all review u, d. esc -iihe your xarea°iaods . n- rtit ~ti'aryaa end - lust- i -tadb ac- and xtlotli'tol.i', /l °t- sl -)ori rW to ctaaacel -ns and en'll— dtayce statist action .fit -17c . A team of provider relations specialists oversee the providers in our network, identifying and screening quality providers, checking credentials, and monitoring performance on an ongoing basis. As operators of child care centers across the country, we are experienced at overseeing quality care environments. We conduct regular quality audits of our own child care centers, and we establish expectations with our contracted agencies and centers to similarly monitor the performance of their caregivers through performance management, field audits, and care location visits. Our routine satisfaction surveys allow us to measure satisfaction levels with the service and the providers in our network. Providers who receive high scores from our clients' employees are rewarded with additional business. Negative provider feedback is dealt with swiftly and seriously: we immediately follow up with the provider in question, share the feedback, suggest action plans for improvement, and determine next steps. Should we determine that an issue was related to the provision of sub -par service, or we were concerned about any aspect of the care provided, we will suspend the provider from our Extended Network pending resolution and, if necessary, remove them from the network. Combining clear expectations, a shared vision, and ongoing communications and support with our intense focus on selecting the right partners, positions us to consistently deliver the highest quality °2015 Bright Horizons Family Solutions LLC 34 The City of Denton Denton, Texas ENARRl€T 3 program available in the market today —one that consis Client Sati c.tio meets and exceeds client and user We also conduct a formal client survey each year, which reveal consistently high levels of client satisfaction across all categories; in fact, in our most recent client survey (2015), The results of the survey are used to determine how we can better meet our clients' needs, empower our employees to provide better service and identify any additional programs and services that would benefit families and children. We consider our client satisfaction surveys to be important tools for gauging our effectiveness as an organization. The results are shared with our executive team, and a plan of action is developed to enhance the partnership and communications efforts, providing the foundation for constructive dialogue regarding the program's operational development and effectiveness within the organization. By combining the results of our formal and informal satisfaction assessments, Bright Horizons is able to build upon the strengths of our programs to address noted issues or service improvements that create lasting value. Responding o Conc.errts We fully investigate any service issue or concern raised by a client or an individual, and monitor the implementation of any response or improvement needed. Full and satisfactory issue resolution is integral to our program. Mandy Smith, your dedicated account manager, will work with you to research and resolve any issue. Our process leverages the following: Qualify Assurance (Q.) ": earn: A cross functional team, which includes senior Bright Horizons management, tracks all service issues and concerns through clearly defined reporting and escalation processes. Service issues may arise when customers contact us directly with the issue, or when a negative response is identified on a submitted survey. All survey results are reviewed and negative ones are tagged for further research and contact. A member of our QA team typically reaches out to the individual to identify the issue, gather information, and start the process of ensuring rapid resolution. Tracking of Issues: Each issue is immediately ranked by severity and tracked in a central database to facilitate reporting and trend analysis. Final Resolution. of all Issues: Each issue is fully investigated and resolved as quickly as possible by Bright Horizons. The QA team member works with our customer service team and other parties as needed to gather information on the issue, and to discuss resolution. We maintain ongoing communication with the employee and you as appropriate throughout the process, and customer issue resolution reporting is available on a regular basis as preferred by the City. °2015 Bright Horizons Family Solutions LLC 35 The City of Denton Denton, Texas ENAHUVT 3 a, Provide eavaienc -c ol'your aaa° aaaailation' .iiaaan i "al stabifity. 111chide a coj_ay ol'your of aaailati iaaaa °t aaa °.i�aaaara�i�a� taat�a-xara�rat, sera xaraat. a °a�a�a�rat. aaaaaaaaaa� a °a� Hundreds of clients, many similar to the City, choose to partner with Bright Horizons because of our financial strength in addition to the high - quality care we provide. We demonstrate our financial strength through our: Healthy balance sheet. Strong cash flow position. Record of consistent earnings — uninterrupted year- over -year revenue and adjusted EBITDA growth for each of the last 15 years despite broader macro - economic fluctuations. Never having declared bankruptcy or operated in default of financial covenants. All centers are either client- sponsored or wholly -owned by Bright Horizons; we do not include a franchise business model. Centralized financial management structure with discrete departments for monthly accounting/ financial reporting, treasury /cash management, and budgeting. Public company listed under the NYSE as BFAM. Finance department and internal controls structure designed and managed to comply with the requirements of Sarbanes -Oxley regulations. Internal auditing and compliance department dedicated to review and evaluate our financial management policies and procedures, conduct center operations audits, and consult on the design of new controls procedures. For the City, these unique strengths translate to an optimum level of protection from economic and liability exposure and a degree of flexibility in structuring contracts and agreements. As a public company, our financials are located on the Investor Relations page of our public website www.brighthorizons.com /financials. In light of the City's requirement to not exceed 200 pages, we suggest downloading from this link. b. esc -i4be your rec- oiniareaaded a roan dtayce iaar'czaa taut -gy aaaii'c- ate iiW einj-daayce %ay c-osts lbr ry i to °ationY c- arc,, c- o- iaqyxncnti, b ac Asses chc i, t tc% 10here are costs to a ria- daaycei, a etail'ira ur a °a a ~aaxarxara aaaiaatiaaaa , We recommend that employees pay a minimal co -pay for utilization. A key metric of any dependent back -up care program's success is utilization. When employers bear the majority of the cost of care and require employees to pay nominal co -pays, the program is more likely to be utilized. Conversely, when employees are expected to bear the full cost of care or even high co -pays, the program is less likely to be utilized as they may be encouraged to stay home rather than return to work. Bright Horizons recommends charging emplovees a nominal co -oav of in -home care. Additional charges apply for medical care. When employees make back -up care reservations, co -pay °2015 Bright Horizons Family Solutions LLC 36 The City of Denton Denton, Texas ENARRIVT 3 details are collected via credit card or electronic bank account withdrawal (EFT) and then charged the day after care is provided. Cancellations after 5:00 p.m. on the business day prior to the day of care will be billed as a use to the employee and the City; all applicable co -pays will be charged. Employees securing services through Bright Horizons CareDirect negotiate the fee and payment type with the individual caregiver. For the cost to the City, we charge an annual fee for Bright Horizons Care Advantage based on anticipated utilization, the size of the employee population, and the scope of the program (subsidized and unsubsidized care, national or regional coverage, in -home and center, child and adults /elders, etc.). In addition, we charge a one -time implementation fee that covers the cost of developing and implementing the program, developing the website, marketing materials, and creating the reporting structure. Our program is highly customizable and we can review performance and make adjustments as needed to accommodate the changing needs of the City and your employees. a., e a -ar 5c flic aaxtr0a111t aan fygw ol'ba -aa a c -arc use (its - to inc', center- ba se) n-oje to Ivy Me fli-st a° to °Macy aa'- 0011c t "ontr act, Accurately forecasting program utilization is a key factor in the strong partnerships that Bright Horizons forges with our clients. We analyze historical data points, timelines, and trends to develop a projection for the number of times we expect the City employees to need back -up care placements throughout the year. This data, from more than covered employees, as well as the following factors, contributes to our proposed utilization allowance. ° ° ° °° Total employee population size " " " "" Number of uses allowed per employee ° ° ° °° Employee demographics (gender, age) " " " "" Co -pay structure " " " "" Geographic dispersion of employees ° ° ° °° Industry Access to the Bright Horizons CareDirect database is unlimited, along with priority enrollment and tuition discounts at participating centers. For the Back -Up Care Advantage Program, Bright Horizons works with the City to provide employees with an annual allocation of uses that offers the City cost predictability and covers anticipated demand. Although customizable to the City's needs, our trending data suggests an average of 'uses per year per employee. A use is defined as any period of care up to hours in length (for in -home care) and up to the normal operating hours of a center. This tvoicallv provides emplovees with more than adequate coverage to meet their individual needs. °2015 Bright Horizons Family Solutions LLC 37 The City of Denton Denton, Texas EYARRVT 3 d. 111chide any nai-rati'vc that hcl�)s to desc-i4be j-)r(,Wr;un c-osts inc-hidhW any and afl (-11,11-doyce ti -es ; start-II I-) ora.111111al fi-ass; 1-n-('Wrain ol-wrations costs; 11,11 111 IIIIIII'l Contract klwth;and inan;Weinclit fi-cs'9 gas al-q-)fic-able. The following price structure is for a national back-up dependent care program covering children and adults/elders, as well as access to additional resources for self-selected care. This allows employees choices in service and distribution. Pvic.ing Notes Because care in the Back -Up 1 1 pricing 1 _p Care Advantage Program is employer subsidized, the p ici g has a cap on the annual allocation of uses for the City and your employees. As noted above, based on a program offering an annual allowance of 10 days ner emnlovee. we forecast vour total annual orograrn usage '02015 Bright Horizons Family Solutions LLC 38 The City of Denton Denton, Texas ENAHUIVT 3 This program fee covers all administration of the program and assumes that total program usage stays within the forecast maximum of uses for the relevant scenario. Your assigned client relations director will monitor and report usage trends on a regular basis. It is possible that some months will see more use than expected while usage dips in other months; these variances will be accommodated. If utilization is consistendv trendin—a higher than expected for three or more months Potential -1 ax Credit Bright Horizons refers potential clients to IRS form 8882, which describes a tax credit available for amounts paid to provide child care services to employees of the taxpayer. Clients will need to make their own tax department or tax advisor aware of the particular facts and circumstances of the program details of their back -up care program in order to determine whether the expense may qualify for these credits. We cannot under any circumstance, provide tax advice to current or potential clients. °2015 Bright Horizons Family Solutions LLC 39 The City of Denton Denton, Texas EYAHRVT 3 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 RFP 6 Contract Term Our standard contract term is for a three year term with three year renewals. RFP 8 Price Adjustments Our standard price increase is 5% each year, which reflects historical increases in the cost of providing back-up care services and is driven by increases caregiver compensation and benefits, insurance, IT, and administrative support expenses. While most clients prefer the predictability of a .fixed increase, we can base annual increases on increases in the specialized Consumer Price Index for our industry (Consumer Price Index for All Urban Consumers, U.S. City Average, (Tuition, Other School Fees and Child Care). Please note that we are not able to decrease our price and would expect annual price increases to occur automatically at the start of each contract year. Our contracts are not subject to termination due to a scheduled price increase. Exhibit 2: General Provisions We fully comply with all applicable Occupational Safety and Health Terms and Conditions A Administration rules and regulations and have robust safety procedures and employee training to secure the well -being of employees and children in our care. Exhibit 2: General Provisions We agree not to assign the contract without the City's consent, except for Terms and Conditions 'A 8 assignments to a parent, affiliate of subsidiary of Bright Horizons or a Assignment successor as a result of merger, sale or acquisition. Exhibit 2: General Provisions Bright Horizons must remain the owner of all intell ectual property used in Terris and Conditions A 12 connection with the services, including all user guides, handbooks, Right to Data, Documents, and communication materials, websites, and other materials. The City and its Computer Software employees will have a right to use such materials in connection with their use of the services. Exhibit 2: General Provisions Inclusion of Performance Liquidated Damages are not appropriate for our Terms and Conditions A 18 services. Performance Liquidated Damages Exhibit 2: General Provisions Specified delivery times are not applicable for our services. Terris and Conditions A 28 Contractor Standards of Performance Exhibit 2: General Provisions Our standard term for payment is 30 days, with payment due in advance at Terms and Conditions A 31 the start of each contract year. Payment and Performance Requirements Exhibit 2: General Provisions As noted above, our standard term for payment is 30 days, with payment Terms and Conditions B 13 due in advance at the start of each contract year. We request that Payment withholding or set off of ` payments be removed from the contract. We °2015 Bright Horizons Family Solutions LLC 40 The City of Denton Denton, Texas EYAHRIVT 3 °2015 Bright Horizons Family Solutions LLC 41 The City of Denton Denton, Texas expect that if a contract is finalized that funds will be available and the contract will not be cont n ent on the availability of funding. Exhibit 2: General Provisions We request that the waiver of claims in Section be mutual to the extent Terms and Conditions B 15 applicable. Final Payment and Close -out Exhibit 2: General Provisions We agree to retain our books, records and documents for five years after Terms and Conditions B 17 the date such records are created, but any audit for a particular year should Right to Audit be completed within one year following the end of that year. We request that the City bear the cost of any audit unless the audit reveals an overpayment of 5% or greater. We are not able to grant audit rights to the records of Subcontractors, suppliers and ether payees. We request that any failure to comply with the audit provisions should be subject to a cure period pursuant to the Termination for Cause provision. Exhibit 2: General Provisions We agree to offer prices no higher than prices offered to similar buyers for '. Terms and Conditions B 19 similar services under similar terms of purchase, but do not agree to the Warranty Price withholding of fees. Exhibit 2: General Provisions We request that this section be removed and that the Termination for Terms and Conditions B 26 Cause section apply for any material breaches of the contract. Default Exhibit 2: General Provisions We request a 30 -day cure period, instead of 10 days. Indemnification Terms and Conditions B 27 should be limited to losses related to third party claims and governed by the Termination for Cause terms of Section 31- Indemnification. Exhibit 2: General Provisions We expect the contract to continue for the entire agreed -upon term' and Terms and Conditions B 28 request that this section be removed_ Termination Without Cause Exhibit 2: General Provisions Delays in performance are not appropriate for back-up care services.' We Terms and Conditions B 28 request Section 30.A be removed. Delays Exhibit 2: General Provisions Indemnification should be limited to third party claims to the extent caused Terns and Conditions B by Bright Horizons, its directors, officers, employees and agents. We will Indemnity indemnify for losses 'related to death, bodily injury, illness, disuse, but not worker's comp ensation, loss of services, loss of income or wages. Exhibit 1 General Provisions We understand that this clause and the insurance requirements in Appendix Terms and Conditions B 32 A are not required as part of the contract, but note that we have robust Insurance Commercial General Liability, Business Auto Liability Insurance, and Umbrella Liability Insurance policies, and carry and Workers' Compensation Insurance as required by law. Exhibit 2: General Provisions No deliverables are contemplated as part of back -up dependent care. Terms and Conditions B 36 No, Warranty by City Against Infringements Exhibit 2: General Provisions Please note that information provided directly from or on behalf of City Terms and Conditions B 37 employees in connection with the delivery of back -up dependent care will Confidentiality be held in strict confidence and may not be disclosed to the City, but may be disclosed as necessary to provide the services' or pursuant to a judicial, regulatoa or administrative ' process. Exhibit 2: General Provisions No deliverables are contemplated as part of backup dependent care. Terms and Conditions B 38 Ownership and Use of Deliverables Exhibit 2: General Provisions We would like to clarify that contingent fees are permissible under the °2015 Bright Horizons Family Solutions LLC 41 The City of Denton Denton, Texas EYAHRIVT 3 Terms and Conditions B 41 contract for bona fide employees of Bright Horizons. No Contingent Fees Exhibit 2. General Provisions We request this provision be modified to permit assignments to a parent, Terms and Conditions B 45 affiliate of subsidiary of Bright Horizons or a successor as 'a result of Assignment Delegation merger, sale, or acquisition- Exhibit 2. General Provisions This section is not applicable to our services. Terms and Conditions B 59 Prevailing W e Rates Exhibit 2. General Provisions We request that any audit for a particular year should be completed within Terms and Conditions B 67 one year following the end of that year. Records Retention Appendix A Insurance We understand that this Appendix is not required as part of this contract Requirements for services. However, we would like to point out that we do meet the insurance limits set forth in Appendix A and generally comply with the specific insurance requirements included. We are able to provide an appropriate certificate of insurance. Please note that we require the policy to be issued by an insurance company with an A.M. Best rating of at least A -, deductibles may not appear on the certificate of insurance, we are not able to name' additional insured parties but the City will be included as an additional insured. Our insurance is written on an occurrence basis' and does not need to be in place after the expiration of the contract term. Attachment A — Workers' Compensation Coverage for Building or Construction Projects is not applicable to our services and should not be included. Exhibit 3 Statement of Work We will notify the applicable state' licensing or other regulatory agency in Dependent /Elder Care the event of a licensing violation or serious injury occurs in a Bright Respondent Responsibilities 8 Horizons Center, which requires notification. We also require our network of back -up care providers to comply with all applicable regulatory or licensing notification requirements. We are not able to notify clients any ' time an injury or licensing violation occurs due to privacy laws and the scope of our network. Exhibit 3 Statement of Work Background checks are required for caregivers provided by Bright Horizons Dependent /Elder Care and all network providers at the start of employment. Respondent Resj2onsibilities 13 Exhibit 3 Statement of Work Employees will have an option to conduct a background check on Dependent /Elder Care caregivers, which employees select through Sittercity.' However, Bright Respondent Responsibilities 16 Horizons does not provide and is not responsible or liable for the accuracy of such back round checks or care arranged through Sittercity. Exhibit 3 Statement of Work Employees may use Sittercity to find pet care services, but Bright Horizons Pet Care Respondent does not provide and is not responsible or liable for any pet care arranged Responsibilities 7 through Sittercity or any screening services provided by Sittercity. We have provided our standard terms and conditions in Appendix E for your reference. 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. °2015 Bright Horizons Family Solutions LLC 42 The City of Denton Denton, Texas Signature Company EYARRVT 3 t Horizons Family Solutions LLC 10/28/15 Date No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions in Exhibit 2. Signature Company Date °2015 Bright Horizons Family Solutions LLC 43 The City of Denton Denton, Texas EYAHRVT 3 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local over entity This questionnaire reflects changes Rnade to the law by II.B. 1491, 80th I..,eg., Regular Session. This ques(ionriarre is being filed in accordance with chap(er 176 of (lie l.,ocal Government Code by person who has it business rela(ionship as definer by Sec(ion 176.001(l...,t) with it local governmemal entity and the person nice(s requiremems under Sec(ion 176.006(a). By law (his ques(iontlaire nium be filed wi(h (lie records adminis(m(or of the local governmem entity not haer (harl (lie 7(h business day after (lie da(e (lie person becomes aware of fac(s (hit( require (lie sm(emem (o be filed. See Sec(ion 176.006, l.,ocal Governmem Code. .A person coninii(s an offense if (lie person knowingly viola(es Sec(ion 176.006, l.,ocal Governmem Code. Ail offense under this section is a Class Cmisdemeanor. 7jN`arTae of person who has a �nisdnes,%, rc4afion6,,Wp with hocA governirinental enfiry. Check this box if yoti are Ming an npdate to, a prcMotidy Med (piiesfionnakv. (The law req�,ukes flial yon,u ffle an n,q)daled comjfle ed q�,ws6onnaie wafli flee, approprrale fflnny, alffliorday not paler flian flie 7"' Ea,usnness day after flie dale flie orat.!hiafly ffled (.pws6onnake becomes hicomp ete or hiaccooYale) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, 13, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? E-1 Yes E-1 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. 41 FX—] I have no Conffict olf Interest to, dkdose. cualylieu uy. 1 2/22/2016 56UM, (AarlAjt, Signature o 444§ihess with the governmental entity Date '02015 Bright Horizons Family Solutions LLC 45 The City of Denton Denton, Texas EYAHRVT 3 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 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 1 Dated October 19, 2015 Received October 19, 2015 Addendum No 2 Dated Received Addendum No 3 Dated Received °gull IIII u, ul mm m @ m, um' m m, uuu I uul Bright Horizons Family Solutions LLC Signature:" A Headquarters: Date: October 28, 2015 200 Talcott Avenue South Name: Sandra M. Wells Watertown, MA 02472 Tide: EVP of Employer Services Regional Office: Fax No.: 972 409 -7153 9901 E. Valley Ranch Parkway, Suite 2015 Tel No.: 830 935 -3286 Irving, Texas 75063 Email: swells a bri hthorizons.com °2015 Bright Horizons Family Solutions LLC 46 The City of Denton Denton, Texas ENARRVT 3 Urgent back -up child & adult care Planned back -up child & adult care In -home & center -based care Online national database of child /elder caregivers for self - service selection Elder care assessment, planning, & referrals Homework help Pet care Preferred enrollment access for full time -care at child care centers Discounts off tuitions for full- time care at child care centers Subsidy levels customized to meet emolover /emolovee needs ° ° ° °° Delivering back -up care for 20+ Stable long standing management team Clear consistent vision and mission Provided +2 million days of back-up care since 2009 Overall fill rate 99% for back -up care 97% fill rate for same day /next day requests for back-up care Consistent overall satisfaction scores for back -up care °2015 Bright Horizons Family Solutions LLC The City of Denton Denton, Texas ENARRVT 3 Exclusivity with top providers Extensive credentialing & audit process Caregivers are employed by providers & trained specifically for back-up care Ability to drive care to highest quality providers through proprietary rovider portal Service level agreements with providers ensures auality services Business continuity programs offered to clients in event of disaster Single point of entry for all services Award winning 24/7/365 contact center Experienced care consultants to coordinate all care arrangements Quick, accessible, & dependable reservations via self or full service platforms Confirmed reservations to custom care options Dedicated program implementation resources Dedicated account management staff Customized combined reporting & marketing support Core competency is actual delivery of care Single entity business unit core business is back -up care °2015 Bright Horizons Family Solutions LLC The City of Denton Denton, Texas F-Iright [:R)''riz,01111's `1; CareAdvantagic '02015 Bright Horizons Family Solutions LLC EYAHRVT 3 <CUENTNAME> is pleased to announce the new aright Horizons Care Advontoge prograrni - offering your famfly Go to work knowing your loved orres are in good hands, `l f° 80<k-up Cam Advantage Program provides XX days of care for your child or aduk/eider reWNewhen regular arrangements fail through, Get it mediate access to care supports at subsidized rates (,center-kased care is $XX/rhiid or $XXI(aundy; 6u owirraruru cai e us $XXA-KNw)r r ent (care )over illrorvss, snow days) or planned (school horldays, Ihahysitter Vacations) ch4d care needis: Adult and etdor care nee(,hs anywhere in the US, A natiorml aetwork of Ngh-quaiity child care centers anrl scii i,.rened in-hoitrx.!r car ebAvefs 2,4/7/365 contact center with experienced COMLAWAS to Coordinate all car e ai rangernents BRiGHT HORIZONS CAREDIRECT"m &�ght Horizons CateMed" msfly connects you with of>tions for more regular and tong-term care needs -- as weill as care for eveniings, weekends, and even pets. Enjoy unhinfteil access to reumurces for: hnding caregivers, Everyday care (babysitters and inannies) for children of all ages Uder care resolurces, planning, and referrals Pet care -- dog wMkers, pet sitters and ram, -e Preferred enrollment access and exclusNe discounts at particilryatfing chIld care centen, nationwide Yots are responsible for the full cost of all care sprvices chosen The City of Denton Denton, Texas , Bngti(, Horizons am C1 are, Advanta '02015 Bright Horizons Family Solutions LLC ENAURVT 3 6-1re, loolidng for an after-schoof sitter, have adLildeldier care needs, or reed someone to walk the dog — Bright Horizons Cam Advantage" �s here for C UE14'r families. RACK-UP CARE AUVANTAGE PROGRAM' as to work knowing your loved ones are in good hands, The Back4)p Care Advantage Program provides XX days of care for D"" a` c or adult/elder relative when regular arrangements, fall through, Get immiediate access to care supports at subsidized rates (center-based care is $XX/child or $XX/famlly� in,+*rine C- ,W,re 63 $XXftjokgr)� Ur ent (caregiver illness, snow days),or planned (school hoCays" bali vacations) child care needs Adult and cider care needs anywhere in the US, A national network of high-quality child care centers wid, screened in-home cat egfyers 24/71365 contact center with experienced consultants to coardnate all care arrangements BRIGHT HORIZONS CAREDJRIECra' Sfight Horizons Care Direct" easily connects you with options for more re9kilar and long-term care needs — as well as care for evenings,, weekends, and even pets. Enjoy unlimited access to resources fcx% Finding self-selected caregivers Everyday care (babysitters and nannies) for children of all ages Elder care resou,ces, planning, and referrals Pet care — dog walkers, pet sitters and more Preferred enrollment access and exclusive discounts at participating child care centers ratlonMde Yowl are responsible for the full cost of alit caa-e so-vices chosen REGISTER NOW. AVOID WORRY LATER. Online: N.J,. Back-Up Care Advantage— click on "Register & Reserve" button Usernarne TB D Password TBO ConDirect — simply click on sittemity and the resource links C* 877.2,42-2737 (877-BH-CARES) for assistame, 2417 The City of Denton Denton, Texas City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -320, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Consider nominations /appointments to the Tax Increment Reinvestment Zone (TIRZ) Number Two Board of Directors. BACKGROUND On December 17, 2012, the City Council adopted an Ordinance No. 2012 -366 designating and describing the boundaries of Tax Increment Reinvestment Zone Number Two (Westpark) to provide the public infrastructure necessary to encourage development in the largest industrially zoned area in the City. Current TIRZ Two Board Structure: The TIRZ board is comprised of thirteen members. The City Council appointed eleven members, which comprise the Economic Development Partnership Board (EDPB), on September 15, 2015 (Ordinance 2015 -074). The governing body of Denton County, which levies taxes on real property in TIRZ Number Two, appointed one board member, Everette Newland. Rayzor Investments LLP, the "Developer," appointed Selwyn Rayzor. The current TTRZ, Two hoard is presented below_ Member ompany Category John Baines [EMA hn E. Baines PC CPAs lack Chamber of Commerce Cleve Breedlove ccess First Capital Bank Aviation Dianne Costa of North Texas, LLC Hispanic Chamber of Commerce Jim Fykes eterbilt Top 20 Taypayer John Gilmer lowers Baking Company lenton Top 20 Taypayer Greg Johnson ity of Denton ity Council Larry Parker Depot --hamber of Commerce Marty Rivers rst State Bank hamber of Commerce Carrell Ann Simmons eridian Bank 11ity t Large Neal Smatresk niversity of North Texas University of North Texas Chris Watts of Denton City Council Everette Newland Denton County Penton County Selwyn Rayzor Rayzor Investments Peveloper City of Denton Page 1 of 2 Printed on 2/26/2016 File M ID 16 -320, Version: 1 TIRZ Board members serve two -year terms and may serve as many as three terms. The eleven members appointed by City Council serve terms concurrent with the EDPB. A member may serve no more than three terms. Everette Newland's term will expire and Denton County has recommended that Alex Payne, with Axis Realty Group, be appointed as the County representative. 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 Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Erica Sullivan Economic Development Analyst Development Services Department, Economic Development Division City of Denton Page 2 of 2 Printed on 2/26/2016 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -321, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance approving a City sponsorship in an amount not to exceed $150,000 of in- kind services and resources for the Denton Arts and Jazz Festival to be held in Quakertown Park on April 29 - May 1, 2016; and providing an effective date. BACKGROUND The Denton Arts and Jazz Festival is organized by the Denton Festival Foundation. Last year, the City Council authorized up to $142,000 of in -kind services and resources for the event. In addition, the Denton Festival Foundation received $86,961 in Hotel/Motel Occupancy Tax (HOT) funds. The in -kind services and resources provided to the Denton Festival Foundation included staff, equipment, supplies, and facilities; 1,026 hours of security, 1,216 hours of park maintenance support, and use of the Civic Center, Quakertown Park, and the Senior Center at no charge. The actual cost to support this event in 2015 was $158,769, or $16,769 more than was authorized by the City Council (Exhibit 1). The increase in cost is due to the additional staff hours and supplies needed to make the park accessible following inclement weather. To support this three -day event, staff estimates the 2016 cost will be approximately $150,000. This cost estimate is based on clear weather; if inclement weather occurs, the staff and supply cost will increase. The Denton Arts and Jazz Festival expects to host approximately 260 vendors and 225,000 people during the three -day event. PRIOR ACTION/REVIEW On February 17, 2015, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $142,000 under Ordinance 2015 -031. On April 1, 2014, the City Council authorized an agreement for the City's sponsorship in an amount not to exceed $123,000 under Ordinance 2014 -093. The Legal Department advised Parks and Recreation that only the City Council has the authority to give away City resources. All sponsorships where City facilities or City services are requested at a reduced rate, or for free, require approval by the City Council. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -321, Version: 1 FISCAL INFORMATION In 2016, the Denton Festival Foundation will receive $91,309 from Fiscal Year 2015 -16 HOT funds. The estimated cost to the City to provide the requested in -kind services and facilities is not to exceed $150,000. The total cost of in -kind services and resources, facilities, and HOT funds is $241,309, for which the City is recognized as a sponsor at the appropriate level. Including this event, the City Council will have authorized a total of $161,700 of in -kind City support to three of the eight previously sponsored special events for Fiscal Year 2015 -16 (Exhibit 2). 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: 4.4 Provide and support outstanding leisure, cultural, and educational opportunities EXHIBITS 1. Budget Versus Actual for FY 14 and FY 15 2. Running Total of In -Kind Support 3. Letter of Request 4. Proposed Ordinance Respectfully submitted: Emerson Vorel, Director Prepared by: Janie McLeod Community Events City of Denton Page 2 of 2 Printed on 2/26/2016 Exhibit I Arts and Jazz Festival Costs Budget vs. Actual for FY14 and FY15 City In-Kind Contribution 2014 Council Authorized 2014 Actual Expenditures 2015 Council Authorized 2015 Actual Expenditures Parks and Recreation $87,011 $93, 96 Police $47,550 $57,753 Solid Waste $5,942 $8, 61 Total In- Kind $123,000 $140,503 $142,000 $159,610 HOT Funds $82,820 $82,820 $86,961 $86,961 Grand Total 205,820 $223,323 $228,961 $246,571 Budget vs Actual In Kind. Services 2014 Councill 2014 Actuall 2015 Councill 2015 Actuall AuthoHzed Expen6tures AuthoHzed Expen6tures G_ � � w m 0 � _ � � _ � _ � 0 d 0 � � _ .q / z � 0 � W : u 0 � � � 0 CIA � Exhibit 2 oc 00 « ran � � ± w = w § § Q 6 � m ƒ & (D w � k � § \ ) � � 2 LLJ U � « .& 1-n % en � � k o w r ƒ � �n 2 � � co � o q � \ � < � � � ■ & ) E - u Exhibit 2 jazz Denton Ee V:ival Foundation, Inc. RO. Box 2104 Denton, 'Fexa s 76202 (940) 565-0931 Fax (940) 566-7007 Exhibit 3 January 21, 2016 Janie McLeod Emerson Vorel 601 E. Hickory Suite B Denton, Texas 76205 Dear Janie & Emerson, The Denton Festival Foundation, Inc. is requesting that the City of Denton be a major sponsor of the annual Denton Arts & Jazz Festival. The support and man hours supplied from Parks & Recreation and other city departments through in -kind services is our most important sponsorship for a successful event. We are proud and appreciate this partnership and look forward to your expertise, advice and services that complement our planning and production. The dates for the Denton Arts & Jazz Festival are April 29, 30 & May 1, 2016. There are no significant changes at this time regarding facilities and logistics at Quakertown Park. The Denton Festival Foundation will work closely with all city departments for additional needs for the upcoming event and will continue to meet our obligations as required by the City of Denton. Sincerely, ti Carol Short, Executive Director SAL.egal \Our Documents \Ordinances \16 \Arts and Jazz. Festival Sponsorship.doe Exhibit 4 ORDINANCE NO. AN ORDINANCE APPROVING A CITY SPONSORSHIP IN AN AMOUNT NOT TO EXCEED $150,000 OF IN -KIND SERVICES AND RESOURCES FOR THE DENTON ARTS AND JAZZ FESTIVAL TO BE HELD IN QUAKERTOWN PARK ON APRIL 29- May 1, 2016; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Denton Arts and Jazz Festival is requesting the City of Denton to participate as a sponsor, at the same level as in previous years, for the event to be held in Quakertown Park on April 29- May 1, 2016; and WHEREAS, the City of Denton has sponsored up to $142,000 of in -kind services and supplies for the 2015 event which included police, park staff, equipment, supplies, and facilities; and WHEREAS, in exchange for the said support the City of Denton was considered to be an event sponsor of the said event at a sponsorship level equal to the value of the in -kind service tendered; and WHEREAS, the City Council finds that it is in the public interest and benefit to the citizens of the City of Denton to participate as a sponsor at a level not to exceed $150,000 of in- kind services for the event to be held in Quakertown Park on April 29- May 1, 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 participate as a sponsor at a level not to exceed $150,000 of in- kind services and supplies, including but not limited to police, park staff, equipment, supplies and facilities, and the said participation is hereby approved. SECTION 2. This ordinance shall be effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR SALegal \Our Documents \0rdinances \16\Arts and Jazz Festival Sponsorship.doc Exhibit 4 ATTEST: JENNIFER WALTERS, CITY SECRETARY I APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -322, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance ratifying the expenditure of funds by the City Manager for the emergency purchase and installation of a Poured in Place (PIP) safety surface at Eureka 2 Playground 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 6071- awarded to Lea Park and Play in the amount of $84,892.60). FILE INFORMATION The Eureka 2 playground project is funded by the Denton Park Foundation in the amount of $500,000. The playground is complete pending the pour of interior concrete sidewalks followed by poured -in -place (PIP) safety surfacing that will be applied on top of the concrete. The Parks and Recreation Department anticipated that the PIP safety surfacing would be funded with Park Foundation funds - however, several pledged donations have not yet been remitted. This has temporarily reduced the Foundation's cash reserve. For safety reasons, the Eureka 2 cannot open until the PIP safety surfacing is in place. To keep this project moving forward, and to meet the published dates for opening, the Parks and Recreation staff has solicited quotes to install the PIP (Exhibit 1).The Parks and Recreation Department has also identified Department funding to cover the associated costs upfront. Staff requested an Emergency Purchase Order to allow the timely completion of the application of the required safety surfacing (Exhibit 2- Emergency Declaration). City funds will be used to fund this work and, as remaining pledges are honored, the Park Foundation will reimburse the Parks and Recreation Department's expenses up to their $500,000 commitment. RECOMMENDATION Ratify an expenditure of funds to Lea Park & Play in the amount of $84,892.60 to allow for the emergency application of safety surfacing at the Eureka 2 playground. PRINCIPAL PLACE OF BUSINESS Lea Park and Play City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -322, Version: 1 Richardson, TX ESTIMATED SCHEDULE OF PROJECT The Park opening is planned for early to mid March 2016. Agenda Information Sheet March 1, 2016 Page 2 FISCAL INFORMATION This project will be funded through donations received by the City of Denton Parks Foundation. The City of Denton will provide the upfront funding from Parks Capital Fund Account 400161916.1350.40100 to purchase the equipment with supplemental reimbursement to those accounts via the Parks Foundation. 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: 4.4 Provide and support outstanding leisure, cultural, and educational opportunities EXHIBITS Exhibit l: Price Quotes Exhibit 2: Emergency Declaration Exhibit 3: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Emerson Vorel at 349 -7460. City of Denton Page 2 of 2 Printed on 2/26/2016 EXHIBIT 1 6071- Tabulation for Eureka Park Poured in Place Safety Surface Vendor Principal Place of Business: Lea Park & Play The Playground Fibar PIP Richardson, TX Keller, TX Dallas, TX Qty Uom Descripton 1 Ea Poured in Place Surface $ 84,982.60 $ 86,547.00 $ 96,187.52 p 1701 N. Greenville Ave. # 508 Richardson, TX 75081 Jason Donnell (972) 690 -8163 City of Denton Info@LeaParkAndPlay.com II http://www.LeaParkAndPlay.com IIIIIIIIIIIIIII�IIIO Office (940) 349 -8275 jason.donnell @cityofdenton.com I�+I �IIIIJ ADDRESS SHIP TO Jason Donnell Eureka 2 City of Denton City of Denton 901 B Texas Street Denton, TX Denton, TX 76209 Office (940) 349 -8275 jason.donnell @cityofdenton.com SALES REP Matt Wakefield QUOTE # 10865 DATE 01/22/2016 EXPIRATION DATE 12/01/2016 DESCRIPTION QTY RATE AMOUNT DuraPlay, Inc. 1 82,420.00 82,420.00 Poured In Place Rubber Safety Surfacing SUBSTRATE: Concrete TOTAL SQ. FOOTAGE: 8497 sf (6675 sf exposed surface + 1822 sf of rolled edge) THICKNESS: 1750 sf @ 3.5, 1125 sf @ 2.5, 1822 sf @ 2 ", 3800 sf @ 1.75' COLORS: 50% color / 50% Black Price is based on a square foot minimum. Price includes material, delivery, installation and 1 dumpster (for material packaging). Price does not include concrete slab, temporary fencing, or security for work performed. Any additional material needed will be billed at the square foot price plus freight. Please Note 1 0.00 0.00 TERMS: Net % 30 days. Bonds 1 2,472.60 2,472.60 Performance and Payment Bond at 3% of total. Purchase Orders are required and should be made out to Lea Park & Play, TOTAL $84 892.60 Inc. Pricing quoted is based on our standard insurance certificate. Unless r specifically listed in the quote above, installation, payment /performance bonds, permits, sealed engineered drawings, TDLR registration /inspection, and 3rd party safety audits are Not Included in this agreement and, if required, are the responsibility of the customer. THANKS FOR CONSIDERING OUR PRODUCTS! (972) 690 -8163 1 (800) 237 -4739 Toll Free 1 (972) 690 -9668 Fax I Info @LeaParkAndPlay.com I www.LeaParkAndPlay.com Accepted By Accepted Date (972) 690 -8163 1 (800) 237 -4739 Toll Free 1 (972) 690 -9668 Fax I Info @LeaParkAndPlay.com I www.LeaParkAndPlay.com Keller, TX 76248 (817) 585 -4636 sales( o-)_playgroundshadeandsurfacing .com BILL TO: City of Denton - Eureka 2 Playground Attn: Jason Donnell 556 Hobson Ln. Denton, TX 76208 Office: (940) 349 -8275 Cell: (940) 395 -0883 Email: iason.donnell(a- TEAM MEMBER JOB Proposal INVOICE NO. DATE January 26, 2016 CUSTOMER ID EXPIRATION DATE February 25, 2016 SHIP TO: (If Different) PAYMENTTERMS Shane Jefferys 1PIP Playground Surfacing 11 Due upon acceptance of QUANTITY DESCRIPTION 1.00 Poured in Place Rubber Playground Surfacing per the following *: *Customer to have site install ready with a concrete sub -base of 4" minimum. Install —9,152 s.f. PIP to include 50 /50 black /standard color with the following depths: 3,800 s.f. PIP thickness of 1.75" to accommodate 4' Critical Fall Heights of equipment to meet CPSC and ASTM 1292 -09 Compliance. 1,125 s.f. PIP thickness of 2.5" to accommodate 6' Critical Fall Heights of equipment to meet CPSC and ASTM 1292 -09 Compliance. 1,750 s.f. PIP thickness of 4" to accommodate 8' Critical Fall Heights of equipment to meet ,,,,,,,,p ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, „,,,,,,,,,,,,,,,,,,,,,,,,,,,,, CPSC and ASTM 1292 -09 Compliance. Includes additional (Rubber Edqe of 2,477 s.f. as noted in revised plan dated 1-21-16 Includes a min. 1/2” EPDM "top' Layer and 5 year Limited Price assumes qood access & does not include excavation of anv rock, concrete or other materials NOTE: Customer to have any irrigation system turned off prior to install & any irrigation capping or , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , redirection is responsibility of customer. Repair of landscaping and /or sod after construction is the , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , responsibility of the Customer. Must be able to access w/ Bobcat equipment. UNIT PRICE LINE TOTAL $ 86,547.00 86,547.00 * *Does not include sales tax which if required will be added ** * *Excludes permitting or fees which should not be required ** .o „s i ��, . iiiiiiii � .�,i , .,, iiiii< �r ✓o ��o� ,��, ., ... �,, .;�� .� ,; .� ,�,i is . ,,,,,,.. .,,,,,,,,,.. .,,,,,,,,,.. .,,,,,,,,,. To accept this proposal, sign here and return with payment: SUBTOTAL $ 86,547.00 FREIGHT ESTIMATE* Date: 8.25 0/,SALES TAX (if applicable) TOTALII $ This quotation is subject to policies and the following terms and conditions. Our quotation is based on shipment of all items at one time to a single destination, unless noted, and changes are subject to price adjustment. Any approved returns subject to a 30% restocking fee. Credit Cards subject to a 3.75% fee Pricing: F.O.B. factory, firm for 30 days from date of quotation Shipment: Order shall ship within 30 -45 days after receipt and acceptance of your order, color selections, approved submittals and receipt of payment. *Freight charges: We make every effort to provide accurate freight prices, however, these are estimates and addt'I charges may apply. Taxes: State and local taxes, if applicable, will be added at time of invoicing unless a tax exempt certificate is provided at the time of order entry. Receipt of goods if Self- Install: Customer shall receive, unload and inspect goods upon arrival, noting any discrepancies on the Delivery Receipt prior to written acceptance of the shipment. Drover WILL SOT unload trailer and a fork Iliift ma be needed to unload a ui ment de eindiin on size of order. Exclusions: Unless specifically included, this quotation excludes all site work and landscaping; removal of existing equipment; acceptance of equipment and off- loading; storage of goods prior to installation; equipment assembly and installation; safety surfacing; borders and drainage provisions. Customer is responsible for all permits should they be required. Customer will be financially responsible for additional cost for Engineer Stamped Drawings if required for permitting. Customer responsible for proper drainage of site. Installation: Shall be by a Certified Installer. Customer shall be responsible for scheduling coordination and site preparation. Pricing assumes level grade less than 2% slope & allow installation equipment access min. 7'W. Purchaser shall be responsible for additional costs to repair, replace or relocate unknown conditions such as buried utilities, tree stumps, bedrock, lines such as irrigation, drainage, sewer or other slow moving utilities or any concealed materials or conditions that may result in additional labor or material costs. Unless otherwise noted, footer spoils spread onsite. Repair of landscaping and /or sod after construction is the responsibility of the Customer. Customer to have any irrigation system turned off prior to install & any irrigation capping or redirection is responsibility of customer. For shade & shelter, footing designs based on 150OPSF soil bearing pressure. Acceptance of this proposal indicates your agreement to the terms and conditions stated herein. THANK YOU FOR THE OPPORTUNITY TO EARN YOUR BUSINESS! .00 ;M',,Fw1bar1111)1P6 Poured -In -Place Rubber Playground Surfacing Quote Date: 1/12/2016 Quote Valid Until: 4/11/2016 Quote Number: 1005 Bill To: Project Information: Your Representative: 1626 CITY OF DENTON Dick Evans ❑ Security 0% of overall color 6151 Chesley Lane ❑ Saw Cutting DENTON TX Dallas TX ❑ 7day /24 hour access? 76208 75214 Phone: 914- 216 -1524 Fax: 914 -273 -8659 County' Email: dick @fibar.com Item Description Unit I Quantity FibarPIP Poured -In -Place Rubber Surfacing I Sq. Ft. 9,152 Price Per Unit This quotation includes 50% color and 50% black 1/2 inch EPDM /TPV cap. installed over Total thickness in inches : # Sq. Ft. 2.0 4846 3.0 1626 3.75 2680 Total Square Feet of the Play Area: 9,152 Price auotation is based on all checked items below: ❑ Aliphatic Binder ❑ Access to Water? ❑ Prevailing Wage ❑ Access to Electric? ❑ Taxable? ❑ Special Colors ❑ Security 0% of overall color ❑ Excavation ❑ Saw Cutting ❑ Sub Base Preparation 0 lineal feet ❑ 7day /24 hour access? ❑ Bonding ❑ Logos or Special Design * Applicable sales tax applies to materials only In Canada, PST and GST is additional. All quotes are in US Dollars unless stated otherwise $10.51 Net Amount $96,187.52 Net Amount $96,187.52 * SalesTax $0.00 Total Amount $96,187.52 EXCAVATION AND SUB BASE NOT INCLUDED IF NEEDED: DUMPSTER: $600 -$800 EACH FORKLIFT: $600 -$800 PRICING BASED ON ALL AREAS BEING INSTALLED AT THE SAME TIME. SF THROUGH EWF INCLUDED. TFG Installations, Inc. 80 Business Park Drive, Suite 300, Armonk, NY 10504 800 - 342 -2721 914 - 273 -8659 fax www.fibar.com EXHIBIT 2 File #: 6071 127947 Requisition #: _w,,,w_ 2/11/2016 Date: Initial all entries below that apply to the proposed purchase, under the Purchasing Procedures as passed by City Council. (More than one entry may apply.) 1. Emergency situations, including procurements necessary to protect the public health or safety or in response to a public calamity; 2. A procurement necessary because of unforeseen damage to public equipment, machinery, or other property; Brief Description /Justifi cation for exception: The Eureka 2 playground project is funded by the Denton Park Foundation in the amount of $500,000. The playground is complete pending the pour of interior concrete sidewalks followed by poured -in -place (PIP) safety surfacing that will be applied on top of the concrete. The Parks and Recreation Department anticipated that the PIP safety surfacing would be funded with Park Foundation funds- however, several pledged donations have not yet been remitted. This has temporarily reduced the Foundation's cash reserve. For safety reasons, the Eureka 2 cannot open until the PIP safety surfacing is in place. To keep this project moving forward, and to meet the published dates for opening, the Parks and Recreation staff has solicited quotes to install the PIP (Attachment 1).The Parks and Recreation Department has also identified Department funding to cover the associated costs upfront. Staff requests an Emergency Purchase Order to allow the timely completion of the application of the required safety surfacing. City funds will be used to fund this work and, as remaining pledges are honored, the Park Foundation will reimburse the Parks and Recreation Department's expenses up to their $500,000 commitment. Respectfully Submitted by, Reviewed by: Reviewed By: ---. -. DucuSigned by: ° -- DocuSlgned by: ...."t'�eieuSrBgwued by: fmU -S&L, V6M2( 11 /2016 fJf6t,, b,6 &211512016 UTWIRTO ���, 2/15/2016 ........_ 9:N 8k3Ai�d�sC505ii'M01 eu.PIF@ 11il:::p11Eo-�RdV�� L,�J�7:. .ik.. Dept. Director Date l 64" l rc�ed�, Date Anita Burgess Date Purchasing Manager City Attorney Approved by:. r- °DocuSlgned by: CAhr,�. C. p� 2/16/2016 _._ ............................ ....... ....... �adtS`�'�iI'eil Date City Manager This form must be attached to a completed Agenda Information Sheet if the expenditure exceeds $50,000. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE RATIFYING THE EXPENDITURE OF FUNDS BY THE CITY MANAGER FOR THE EMERGENCY PURCHASE AND INSTALLATION OF A POURED IN PLACE (PIP) SAFETY SURFACE AT EUREKA2 PLAYGROUND 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 6071 - AWARDED TO LEA PARK AND PLAY IN THE AMOUNT OF $84,892.60). WHEREAS, state law and ordinance require that certain contracts requiring an expenditure or payment by the City in an amount exceeding $50,000 be by competitive bids, except in the case of public calamity where it becomes necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or in case of unforeseen damage to public property, machinery or equipment or where the procurement is necessary to preserve or protect the public health or safety of the city's residents under Section 252 of the Local Government Code; and WHEREAS, the City Manager has recommended to the City Council that it is necessary to purchase goods or services due to the following emergency conditions outlined in the memorandum attached hereto, incorporated herein by reference; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby determines that there is a public calamity that makes it necessary to act at once to appropriate money to relieve the necessity of the citizens of the city, or to provide for unforeseen damage to public property, machinery or equipment, or to preserve or protect the public health or safety of the city's residents and by reason thereof, the following emergency purchases of materials, equipment, supplies or services, as described in the "Purchase Orders" referenced herein and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 6071 Lea Park and Play $84,892.60 SECTION 2. Because of such emergency, the City Manager or designated employee is hereby authorized to purchase the materials, equipment, supplies or services as described in the Purchase Order on file in the office of the Purchasing Agent, and to make payment therefore in the amounts therein stated, such emergency purchases being in accordance with the provisions of state law exempting such purchases by the City from the requirements of competitive bids. EXHIBIT 3 SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6071 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. 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 -325, Version: 1 Legislation Text AGENDA INFORMATION SHEET AGENDA DATE: March 1, 2016 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. SUBJECT Consider adoption of an ordinance establishing a Teen Council to provide a teen perspective to the Parks and Recreation Department regarding programming and community issues related to Parks programming; and provide an effective date. BACKGROUND The Denton Teen Council was originally formed in the summer of 1998 by the members of Adults for Youth in Denton (AFYID) organization. The Denton Teen Council started with 23 members. In 1999, the Executive Teen Council Committee was created with members elected by their peers in the Teen Council. In 2000, the oversight and supervision of the Denton Teen Council was transferred to the Denton Parks and Recreation Department due to the dissolution of AFYID. The Denton Teen Council was a very active group being involved in several community service projects (i.e., graffiti removal, bingo nights at The Vintage, etc.), creating and implementing numerous teen events (i.e., Battle of the Bands, Disco Inferno, Smart Rave, Back to School Pool Party) and implemented various fundraisers collecting over $12,000 (i.e., Brave Combo Concert & Silent Auction, Texas Motor Speedway, etc.). In addition, the Denton Teen Council would provide input to the Denton City Council on issues such as implementing a teen curfew. Due to the layoffs of several staff members and reorganization within the Denton Parks and Recreation Department in 2005, several programs, such as the Denton Teen Council, were eliminated. In 2014, Denton Parks and Recreation staff met with over 200 teens from Denton High School, Ryan High School, Guyer High School, Harpool Middle School, Strickland Middle School, and McMath Middle School to discuss the creation of a Teen Center. Through conversations with the teens, it was apparent that there is a significant gap in services for teens in the City of Denton. Many of the teens expressed that they want to have a voice in matters related to their age group and feel that more programs and services for teens are needed. The teens expressed tremendous support for the implementation of a teen council and a teen center. Some of these meetings were attended by City Council and Park Board members. The mission of Denton Teen Council is to develop youth leaders committed to learning about local government and the roles they can have in it, making a difference in our community and the lives of youth, recognizing their voice, and representing other youth in the City of Denton. The goal of the Denton Teen Council aims to empower, enlighten, and inspire all young people within the Denton Community. Their mission is to provide a youth perspective to the Parks and Recreation Department on City of Denton Page 1 of 3 Printed on 2/26/2016 File #: ID 16 -325, Version: 1 a wide variety of community and youth- related issues through research, peer discussion, and community interaction. OPTIONS The City Council may approve the implementation of a Teen Council, deny the request, or ask staff to make modifications. RECOMMENDATION Staff recommends approval of the implementation of a Teen Council. ESTIMATED SCHEDULE OF PROJECT Teen Council members would be recruited during March of 2016. Recruitment will take place throughout the City from Denton ISD, private schools, home schools, etc., with a goal of including representation from minorities and low socioeconomic status youth. Applications will be reviewed by the City Council in April and each City Council member would appoint up to three members to the Teen Council. All other members would be selected by City staff. The Denton Teen Council will have 25 members with an Executive Council Committee comprised of members elected by their peers within the Council. The members of the Teen Council will be notified in May 2016, with the first Teen Council meeting taking place in September 2016. PRIOR ACTION/REVIEW The Parks Department presented this item for discussion and sought direction at the February 16, 2016, City Council Work Session. The City Council directed staff to move forward with the formation of a Teen Council. FISCAL INFORMATION N/A 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, Livable & Family - Friendly Community Related Goal: 4.1 Enhance public safety in the community EXHIBITS 1. Teen Council Application 2. Teen Council General Information Sheet 3. Ordinance Respectfully submitted: Emerson Vorel, Director Parks and Recreation Department Prepared by: Kathy Schaeffer, Athletics/YTS Program Area Manager City of Denton Page 2 of 3 Printed on 2/26/2016 File M ID 16 -325, Version: 1 Parks and Recreation Department City of Denton Page 3 of 3 Printed on 2/26/2016 jenton F KI R The Denton Teen Council offers opportunities for motivated students to become involved with their community. The teen council members will work on projects that can benefit the City like community service projects, fundraisers, and teen events. Some members will travel and attend the Youth Advisory Summit. Each City Council member selects three members, and City staff selects the rest of the teen council. Exhibit 1 0 requirements What are the o Denton • Must be entering grades 8th -11th • Between 13 -17 years old • Attend a state recognized school or homeschool • Attend all meetings for a full school year • Attend at least one summer project • Must be a City of Denton resident • Must have full parent /guardian agreement Develop youth leaders who are committed to learning about local government, making a difference in their community, and representing other youth in the City of Denton. Denton Teen Council aims to empower young people within the community. Through peer discussion and community interaction, the council provide a youth perspective to community and youth - related issues. JIw DEN 'L !N LP N WL To apply to be a part of the upcoming Denton Parks and Rec Teen Council fill out the application below. Attach additional documents as needed. Applications are also online at www.dentonparks.com. The attached waiver must be signed and included in the application. Email the application back to Sara Travis at sara.travis@cityofdenton.com before April 15, 2016. Name: Address: Phone Number: School: Email Address: Age: Grade: Are any of your friends or family employed with the City of Denton? Yes No If yes, please tell us your relation to them, their name and job title: Meetings will be held on the second Tuesday of each month at 5 p.m., and attendance is important. Do you have any conflicts with this time? Yes No If yes, please explain your conflicts: Please answer the following in the space provided. If needed, attach additional documents. Please limit your responses to 75 words or less. 1. List your community involvement, extracurricular activities, awards, organizations, etc. 2. What issues do you think teenagers are facing in the community? 3. If selected, what do you think you could contribute? In.— F—' DEN I ON 4. How do you feel your personality and leadership style would help the Denton Teen Council? 5. Explain a time you had to deal with an opinion that was different from your own. How did you resolve the difference in opinion? 6. How do you handle multiple responsibilities? For example, how do you balance school work with family, and extracurricular activities? 7. What values do you publicly display through social networking sites, pictures, bumper stickers, clothing, etc.? How do you present yourself to the world? 8. Is there a specific area of local government or City Council that you find interesting? Why? Applications will be not be accepted without the signed waiver and all answers complete. An in-person interview may be required before members are finalized. By typing my name below I verify that all information included on this application is true and correct to the best of my knowledge. In.- F-0, DEN I ON Exhibit 2 Denton Teen Council General Information Mission Statement: The mission of Denton Teen Council is to develop youth leaders committed to learning about local government and the roles they can have in it, making a difference in our community and the lives of youth, recognizing their voice, and representing other youth in the City of Denton. Goal: Denton Teen Council aims to empower, enlighten, and inspire all young people within the Denton Community. Purpose: Through research, peer discussion, and community interaction, provide a youth perspective to the Parks and Recreation Department on a wide variety of community and youth- related issues. Qualifications: • Be between the ages of 13 -17 • Must be a City of Denton Resident • Must be in the 8h thru 11th during the 2016 -17 school year. • Attend a state - recognized school or home school. • Applicants may be required to interview Commitment: • Must be able to attend all meetings for a full school year (school year is defined as starting September 1 and ending May 31) • DTC meetings will be held on the 2nd Tuesday of every month at 5pm. • Assist in community service opportunities throughout the year • Attend various special events and fundraisers throughout the year • Be able to attend at least one (1) summer event/project • Accept mentoring from peers • Create, organize, and administer events /activities • Make presentations to peers and civic clubs • Attend the Youth Advisory Summit if selected, may require travel. • Help to promote the DTC • Keep parents /guardians informed of scheduled activities Appointment: • Each member of the Denton City Council may appoint up to three members each year. • All other members will be selected by City staff. • Teen Council will have up to 25 members • An Executive Team will be elected by their peers that will include a President, Vice - President, Treasurer, Secretary, Historian, and Marketing • Recruitment of members will only take place once a year Focus of Teen Council (but not limited to): • Provide feedback on PARD- related issues such as homelessness, litter, curfews, opinions on new park development (i.e., water park, skate park), bike lanes, etc. • Creation and implementation of Teen program (i.e., Battle of the Bands) • City Beautification projects (i.e., Graffiti Removal, Clean -ups) • Provide Summer Lunches and activities to children in need • Community Service Projects (i.e., graffiti removal, fundraising) • Attend and /or host a Teen Leadership conference • Be involved in the creation of the Denton Teen Center • Mentorship program for middle school age youth • Address issues the teens deem important for the future of the City of Denton • Promote DTC through social media sources SALegaROUr 1.)ociiiiients\Ordinanccs\16\Deiiton Teen Council.doc ORDINANCE NO. AN ORDINANCE APPROVING THE ESTABLISHMENT OF A 'TEEN COUNCIL TO PROVIDE TEEN PERSPECTIVE TO 'THE PARKS AND RECREATION DEPARTMENT REGARDING PROGRAMMING AND COMMUNITY ISSUES RELATED TO THE PARKS AND RECREATION DEPARTMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The City Council has expressed interest in establishing a 'Seen Council within the Parks and Recreation Department as a way to provide insight and perspective of the younger citizens of the City of Denton; and WHEREAS, the mission of the Denton Teen Council is to develop youth leaders committed to learning about local government and the roles they can have in it and to empower, enlighten, and inspire all young people within the Denton Community; NOW, THEREFORE, THE COUNCII.., OFTI-IE CITY OFDENTON HEREBY ORDAINS: SECTION 1. The City Council hereby establishes the Denton Teen Council within the Parks and Recreation Department. SECTION 2. 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: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 16 -335, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Department of Development Services CM/ ACM: Jon Fortune Date: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas Nunc Pro Tunc, correcting an inadvertent mistake in ordinance 2015 -188 relating to the annexation of an area of land to the City of Denton, Texas that was granted deferral of annexation until October 31, 2017. 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. On June 16, 2015, the City Council adopted Ordinance No. 2015 -188, which annexed to the City approximately 209.15 acres of land within the annexation area identified as PAA3. Staff recently discovered that a parcel of land was inadvertently annexed to the City as part of the 2015 Annexations as shown in Exhibit 1. The property owner was granted a deferral of annexation to allow the use of a temporary batch plant in connection with the IH -35 road widening project. This amendment will correct an error and properly reflect those properties within PAA3 that were actually intended to be annexed by the City Council. OPTIONS 1. Adopt ordinance. 2. Decline ordinance. 3. Table this item. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The following is a summary of the actions taken by the City in association with the annexation: City of Denton Page 1 of 2 Printed on 2/26/2016 File M ID 16 -335, Version: 1 June 16, 2015, City Council second reading and adoption of the Ordinance 2015 -188. EXHIBITS 1. Ordinance No. 2015 -188 2. Amended Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Katia Boykin Planning Supervisor, CPM City of Denton Page 2 of 2 Printed on 2/26/2016 sAlegal \our documents \ordinances\15 \paa3 annexing parcel doc ORDINANCE NO. 2015 -188 AN ORDINANCE ANNEXING AN AREA OF LAND TO THE CITY OF DENTON, TEXAS, GENERALLY IDENTIFIED AS PAA3 OF APPROXIMATELY 209.15 ACRES (LESS THOSE PARCELS IDENTIFIED IN EXHIBIT "C ") LOCATED ON THE SOUTH SIDE OF GANZER ROAD; EAST AND WEST OF BARTHOLD ROAD; NORTH OF FM 1173; WEST OF I -35, AND MORE SPECIFICALLY IDENTIFIED IN EXHIBIT "A" ATTACHED HERETO, WHICH AREA IS ADJACENT TO AND ABUTS THE EXISTING CITY LIMITS OF THE CITY OF DENTON, TEXAS, AND WHICH CONTAINS FEWER THAN 100 SEPARATE TRACTS OF LAND ON WHICH ONE OR MORE RESIDENTIAL DWELLINGS ARE LOCATED ON EACH TRACT; PROVIDING FOR INCLUSION OF A SERVICE PLAN IN THIS ORDINANCE; EXCLUDING PROPERTIES WITHIN PAA3 SUBJECT TO NON - ANNEXATION AGREEMENTS FOR AGRICULTURAL, WILDLIFE MANAGEMENT OR TIMBERLAND USE FROM THE ANNEXATION; PROVIDING FOR CORRECTION OF THE CITY MAP TO INCLUDE THIS ANNEXED AREA; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Section 43.061, Subchapter C -1, Local Government Code, a home rule city is authorized to annex certain areas that are not required to be in an annexation plan; and WHEREAS, this annexation is under the annexation procedures for areas exempted from an annexation plan pursuant to Tex. Loc. Gov't Code section 43.052(h); and WHEREAS, the Denton City Council finds that there are fewer than 100 separate tracts of land on which one or more residential dwellings are located on the PAA3 tract in the area to be annexed; and WHEREAS, the Denton City Council finds that the annexation will allow the city to ensure development consistent with The Denton Plan as it is now written, or as it may be modified by the City from time to time; and WHEREAS, all required notices, including written notice of intent to annex said area to each property owner, each public entity and each railroad company within said area as required by Section 43.062, Subchapter C -1, Local Government Code, and all public hearings and requirements for such annexation have been had in accordance with applicable law; and WHEREAS, the City has prepared a service plan for the area to be annexed in accordance with Tex. Loc. Gov't Code section 43.056 providing for full municipal services to such area, which service plan was made available to the public and explained at the scheduled public hearings; and WHEREAS, offers of non - annexation development agreements have been made to the owners of all eligible properties within the area to be annexed pursuant to this Ordinance, which properties have been appraised for ad valorem tax purposes as land for agricultural, wildlife management or timberland as required by Section 43.035, Subchapter B, Local Government Code; and sAlegal \our documents \ordinances \15 \paa3 annexing parcel.doe WHEREAS, the City Council, by prior action, has approved certain non - annexation agreements executed by eligible property owners within PAA3; and WHEREAS, the City desires to affirm that structures, uses and facilities pre- existing in areas annexed under this Ordinance, or in areas subject to non - annexation agreements within PAA3 approved by prior action, shall be subject to the protections and limitations imposed by §43.002 of the Texas Local Government Code, as well as those protections afforded by Subchapter 11 of the Denton Development Code, to the extent it is applicable; and WHEREAS, under the previously approved non - annexation agreements between an eligible property owner and the City, the lands subject to the agreements retain their extraterritorial status and the owners of such lands must abide by the City's development regulations as if such lands were within the City limits, as provided further in such agreement; and WHEREAS, the land which is adjacent or contiguous to an area subject to a non - annexation agreement is considered adjacent or contiguous to the City for purposes of annexation; and WHEREAS, the City Council of the City of Denton deems it to be in the best interests of the citizens of the City of Denton to annex said territory into the City of Denton, save and except those properties subject to prior approved non - annexation agreements within PAA3; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this Ordinance are incorporated herein by reference. SECTION 2. The area of land which abuts and is adjacent to the existing corporate limits of the City of Denton, Texas, known as PAA3, as described in Exhibit "A ", attached hereto and incorporated herein, and as depicted in Exhibit "B," attached hereto and incorporated herein (except that if there is conflict between the Exhibits, "A" shall control), save and except for those properties described in Exhibit "C ", which are subject to certain non - annexation agreements, executed by property owners within PAA3 and previously approved by the City, due to their use for agricultural, wildlife management or timberland purposes as described in Section 43.035, Subchapter B, Local Government Code, is hereby ANNEXED to and included within the corporate limits of the City of Denton, Texas. SECTION 3. A service plan prepared in accordance with applicable provisions of state law pertaining to annexation is attached hereto as Exhibit "D" and made a part hereof for all intents and purposes. SECTION 4. The City Manager is hereby authorized and directed to immediately correct the map of the City of Denton by adding thereto the additional territory annexed by this Ordinance, indicating on the map the date of annexation and the number of this Ordinance, and the ETJ resulting from such boundary extensions. Page 2 sAlegal \our documents \ordinances \15 \paa3 annexing parcel.doc SECTION 5. This Ordinance shall be become effective upon final passage by the City Council. ...._.....�.� SECTION 6. Should any paragraph, section, sentence, phrase, clause or word of this Ordinance be declared unconstitutional or invalid for any reason, the remainder of this Ordinance shall not be affected thereby. SECTION 7. Nothing herein should be deemed to repudiate any earlier action by the City relating to approval of any non - annexation agreement associated with properties contained within PAA3. AND IT IS SO ORDERED. Passed by the City Council on 1St reading this I day of , 2015. nd �' 2015, Passed by the City Council on 2 reading this day of C HIU WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY:. .._.... _ ...... APP V-D AS 1"0 LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY +� , Page 3 EXHIBIT "A" Annexation Tract PAA3 (Page 1 of 3) BEGINNING at a point on the present Denton city limits line, described as the southwest corner of an annexation tract established and described in Ordinance 1985 -246 and further described therein as being on the centerline of F.M. 1173; THENCE North 87° 57' East, along the center line of F.M. 1173 and along the present Denton city limit line as established in said Ordinance 1985 -246 a distance of 310.5 feet to a point for corner; THENCE North 89° 39' East, along the center line of F.M. 1173 and along the present Denton city limit line as established in said Ordinance 1985 -246 a distance of 2,153.5 feet to a point for corner, said point also lying 500 feet west of and perpendicular to the center line of Interstate Highway 35, said point also being on the westerly line of a City of Denton annexation tract established and described in Ordinance 1969 -40 (Tract VI); THENCE South 02° 57' East, parallel to and 500 feet west of the center line of Interstate Highway 35, same being the present Denton city limit line established and described in Ordinance 1969 -40 (Tract VI), a distance of 45 feet to a point for corner, said point lying on the south right -of -way line of F.M. 1173 and also being the northeast corner of a City of Denton annexation tract established and depicted in Ordinance 20,07-268 (1'7' hibit A -:3 therein); THENCE South 89° 19' 54" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established, described and depicted in Ordinance 2007 -268 (Exhibit A and Exhibit A -3 therein), a distance of 1,801 feet to a point for a corner; I 1 II NCI South 88° 07' 35" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 99.83 feet to a point for a corner; THENCE North 880 37' 44" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 401.49 feet to a point for a corner; THENCE North 84° 33' 28" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 100.64 feet to a point for a corner; THENCE North 870 39' 59" West along the south right -of -way. line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit 'A therein), a distance of 1,634.99 feet to a point for a corner, said point lying on the easterly right -of -way line of the Kansas City Southern Annexation Tract PAA3 (Page 2 of 3) Railway (formerly Gulf, Colorado �� ouoobntubn being the northwest comer of said Ordinance %O07'208 annexation tract; THENCE northwe._,'de�ng�e��ng�n��|�49���g�u� coumeuand di�un000uf the 'said easterly railroad h f- line m total distance of 9'501 feet to m point for ucomer; said point being the intersection ofLheom!d easterly railroad rigbt-uf-wuy line and the south right of way line mf{3omzerWest Road, THENCE in an easterly direction, along the courses and distances of the southerly implied r|obt-ot-vvuyUuoufGuozer \�eutRoad u total distance u[8,l82 feet toupoint fhrauomn~'uaidpoin1ly|ngon[he rementDenton city limit line established and described byannexation Ordinance 1987-141; THENCE South Ol" 58` East along the present Denton city limit line established and described by annexation Ordinance 1987-14 1, a distance of 922 feet to a point for comer, said point being the southwest comer of said Ordinance 1987-141 annexation tract and also lying on the north line of a City of Denton annexation tract established and described |u Ordinance l96g-40 (Tract VU; THENCE North 88' 53' West along the present Denton city limit line established and described by annexation Ordinance 1969-40 (Tract VI) a distance of 250 feet toapoint for comer, said point lying 5O0 feet west of the said center line if Interstate Highway 35 and being the northwest comer of said annexation Ordinance 1969-40 (Tract VI); THENCE South 00"44^ East parallel to and 5O0 feet west of said center line wfInterstate Highway 35 and along the present Dentori city limit line established and described by annexation Ordinance l969'40(Tcaot`�Du distance u[6,O87 feet toa point for uorne� said point lying 50O feet nvea1u' the said center line uf Interstate Highway 35 and being the northeast comer of said annexation tract established and described iuOrdinance lV85-246; THENCE North 89' 29` West along the present Denton city limit line established and described by annexation Ordinance 1985-246 a distance of 324.6 feet to a point for connmc ' THENCE South 89vl5'4O'` West along the present Denton city |im|tline eutuhUuhud and described by annexation Ordinance l905'240u distance nf}.00Dfeet tnu point for comer; THENCE North 090 28^ West along the pn:000t Denton city limit line established and described by annexation Ordinance 1985-246 a distance of 1,034.21 feet to a point for Annexation Tract PAA3 (Page 3 of 3) THENCE South 00° 25' 30" West along the present Denton city limit line established and described by annexation Ordinance 1985 -246 a distance of 1,271.72 feet to a point for corner; THENCE South 000 42' West along the present Denton city limit line established and described by annexation Ordinance 1985 -246 a distance of 426.35 to the POINT OF BEGINNING and containing 1,090 acres of land. FYhihit R PAA -3 Exhibit "C" 1. Being 21 acres of land, more or less, situated in the S.L. Johnson Survey, Abstract No. 683, Denton County, Texas, more fully described in that Deed Without Warranty dated March 3, 2011, from HLHTE -Lyda Hill Trust, HLHTE - Alinda H. Wikert Trust and HLHTE -Albert G. Hill, Jr. Trust to H3H, LLC, a Texas limited liability company, filed for record on March 9, 2011 and recorded in Instrument Number 2011 -22008 of the Real Property Records of Denton County, Texas. SAVE AND EXCEPT 4.74 acres of land, more or less, currently within the existing city limits, commonly known as DCAD Property ID 315333. Leaving 16.26 acres of land, more or less, commonly known as DCAD Property ID 315334. 2. Being Lot 12, Block 1 of Ganzer Estates, an Addition to Denton County, Texas, according to the map or plat thereof recorded in Cabinet M, Slide 78 of the Plat Records of Denton County, Texas, as described in that certain Warranty Deed with Vendor's Lien dated August 15, 1996, but to become effective August 16, 1996 from John Holley and Vaughn Andres, d /b /a H & A Investments to Kent E. Wolf and Lori A. Wolfe a/k/a Lori Ann Wolf. Said Lot 12, Block 1 of Ganzer Estates is commonly known as DCAD Property ID 185230. 3. Being 86.132 acres of land, more or less, situated in the S. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described in Tract 3 of that certain Warranty Deed with Vendor's Lien dated March 12, 1999 from Ellouise McDonnell to Harlan Properties, Inc., filed for record on March 15, 1999 and recorded in Volume 4296, Page 1246 of the Real Property Records of Denton County, Texas. Said 86.132 acres, more or less, is commonly known as DCAD Property ID 79416 and DCAD Property ID 37689, respectively. SAVE '& EXCEPT: A 1.00 acre tract of land, more or less, situated in the S. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described in that certain Special Warranty Deed dated March 24, 2004 from Harlan Properties, Inc. to North Denton Pipeline, L.L.C., filed for record on April 23, 2004 and recorded in Instrument Number 2004- 51974 of the Real Property Records of Denton County, Texas. Said 1.00 acre tract of land, more or less, is commonly known as DCAD Property ID 270484. 4. Being 294.026 acres of land, more or less, situated in the John W. Gibbons Survey, Abstract No. 446, the John Pearson Survey, Abstract No. 1049 and the S. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described in Tract 1 of that certain Warranty Deed with Vendor's Lien dated March 12, 1999 from Ellouise McDonnell to Harlan Properties, Inc., filed for record on March 15, 1999 and recorded in Volume 4296, Page 1246 of the Real Property Records of Denton County, Texas. Said 294.026 acres, more or less, is commonly known as DCAD Property ID 167644, DCAD Property ID 60428, DCAD Property ID 37686 and DCAD Property ID 173412, respectively. SAVE & EXCEPT: A 7.873 acre tract of land, more or less, situated in the John Pearson Survey, Abstract No. 1049 and the S. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described in that certain Warranty Deed with Vendor's Lien dated to be effective June 18, 1999 from Harlan Properties, Inc. to Robert J. Sullivan and wife, Jennifer L. Sullivan, filed for record on June 28, 1999 and recorded in Volume 4369, Page 1796 and corrected in Volume 4382, Page 487 of the Real Property Records of Denton County, Texas. Said 7.873 acres, more or less, is commonly known as DCAD Property ID 208223. 5. Being a called 18.73 acre tract of land, more or less, situated in the John W. Gibbons Survey, Abstract No. 446, Denton County, Texas, and being all of the portion lying East of the Railroad of that certain South one -half (1/2) of a called 142.97 acre tract of land, described the Warranty Deed dated August 3, 1972 from Rosa Hopkins to Ballard Hopkins, filed for record on September 6, 1972 and recorded in Volume 654, Page 631 of the Official Public Records of Denton County, Texas. Said 18.73 acres, more or less, is commonly known as DCAD Property ID 60790. 6. Being a called 28.69 acre tract of land, more or less, situated in the John W. Gibbons Survey, Abstract No. 446, Denton County, Texas, and being all of the portion lying East of the Railroad of that certain North one -half (1/2) of a called 142.97 acre tract of land, described the Warranty Deed dated August 3, 1972 from Rosa Hopkins to Wayne W. Hopkins, filed for record on September 6, 1972 and recorded in Volume 654, Page 629 of the Official Public Records of Denton County, Texas. Said 28.69 acres, more or less, is commonly known as DCAD Property ID 167642. 7. Being Lot 15, Block 1, Ganzer Estates, an Addition to Denton County, Texas, according to the map or plat thereof recorded in Cabinet M, Page 78 of the Plat Records of Denton County, Texas, and being all that certain lot, tract or parcel of land described in that certain Assumption Warranty Deed dated August 28, 1998 from Lonnie J. Rodgers and wife, Yong Ja Rodgers to Jim R. Lawson and Martha A. Lawson, filed for record on August 28, 1998 and recorded in Volume 4164, Page 1446 of the Real Property Records of Denton County, Texas. Said Lot 15, Block 1, Ganzer Estates, is commonly known as DCAD Property ID 185233. 8. Being 97.945 acres of land, more or less, situated in the John Pearson Survey, Abstract No. 1049, the S.L. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described in that certain Assumption Warranty Deed dated August 31, 2005 from Bobby Joe Meritt and wife, Jackie Meritt to Meritt Bois -D' -Arc Enterprises, Inc. and Meritt Buffalo Events, LLC, filed for record on September 7, 2005 and recorded in Instrument Number 2005- 111889 of the Real Property Records of Denton County, Texas. SAVE & EXCEPT: 3.449 acres, more or less, situated in the John Pearson Survey, Abstract No. 1049, Denton County, Texas, described in that certain Quitclaim Deed dated October 17, 2006 from Meritt Buffalo Events, LLC to Bobby Joe Meritt, filed for record on October 26, 2006 and recorded in Instrument Number 2006 - 132653 of the Real Property Records of Denton County, Texas. The remaining 94.496 acres, more or less, is commonly known as DCAD Property ID 283913 and DCAD Property ID 283909, respectively. 9. Being 2.50 acres of land, more or less, situated in the John Pearson Survey, Abstract No. 1049, the S.L. Johnson Survey, Abstract No. 683, Denton County, Texas, and being more fully described as the Save and Except Tract in that certain Assumption Warranty Deed dated August 31, 2005 from Bobby Joe Meritt and wife, Jackie Meritt to Meritt Bois -D' -Arc Enterprises, Inc. and Meritt Buffalo Events, LLC, filed for record on September 7, 2005 and recorded in Instrument Number 2005- 111889 of the Real Property Records of Denton County, Texas. Said 2.50 acres of land, more or less, is commonly known as DCAD Property ID 60424 and DCAD Property ID 37682, respectively. 10. Being Lot 16, Block 1, Ganzer Estates, an Addition to Denton County, Texas, according to the map or plat thereof recorded in Cabinet M, Page 78 of the Plat Records of Denton County, Texas, and being all that certain lot, tract or parcel of land described in that certain Warranty Deed with Vendor's Lien dated to be effective September 2, 2005 from John D. Hesse and wife, Geri Hesse to Dale Wolf and wife, Kimberly Wolf, filed for record on September 13, 2005 and recorded in Instrument Number 2005- 114453 of the Real Property Records of Denton County, Texas. Said Lot 16, Block 1, Ganzer Estates, is commonly known as DCAD Property ID 185234. S:\Planning\Annexations\2016 Annexations\Nunc Pro Tune - New Fanns \Nunc Pro Tune Ordinance -New Fanns.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, NUNC PRO TUNC, CORRECTING AN INADVERTENT MISTAKE IN ORDINANCE NO. 2015 -188 RELATING TO THE ANNEXATION OF AN AREA OF LAND TO THE CITY OF DENTON, TEXAS, GENERALLY IDENTIFIED AS PAA3, LOCATED ON THE SOUTH SIDE OF GANZER ROAD; EAST AND WEST OF BARTHOLD ROAD; NORTH OF FM 1173; WEST OF I -35, AND MORE SPECIFICALLY DESCRIBED IN EXHIBIT "A "; SPECIFICALLY BY EXCLUDING ONE PARCEL OF LAND THAT WAS INADVERTENTLY ANNEXED NOTWITHSTANDING THAT THE PARCEL WAS GRANTED A DEFERRAL OF ANNEXATION; PROVIDING FOR A CORRECTION OF THE CITY MAP TO EXCLUDE THE INADVERTENTLY ANNEXED LAND; PROVIDING FOR A SAVINGS CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on June 16, 2015, the City Council adopted Ordinance No. 2015 -188, which annexed to the City of Denton, Texas approximately 209.15 acres of land generally identified as "PAA3 ", as legally described in Exhibit "A ", save and except those parcels listed in Exhibit "C ", to Ordinance No. 2015 -188; and WHEREAS, the City has recently discovered that a parcel of land was inadvertently annexed to the City as part of PAA3; and WHEREAS, the parcel of land, as identified in Exhibit "B" and attached herein, was granted a deferral of annexation to allow the use of the property for a temporary batch plant in connection with the IH -35 road widening project; and WHEREAS, the parcel was inadvertently annexed into the City via Ordinance No. 2015- 188; and WHEREAS, the City Council has the inherent power to retroactively correct such mistakes to reflect only those properties within PAA3 that were actually intended to be annexed by the City Council when approving Ordinance No. 2015 -188; and WHEREAS, the City Council finds that the action taken herein is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. Ordinance No. 2015 -188 is hereby amended to the limited extent necessary to correct an inadvertent mistake in the annexation of the parcel, as legally described in Exhibit S:\Planning\Annexations\2016 Annexations\Nunc Pro Tune - New Fanns \Nunc Pro Tune Ordinance -New Fanns.docx "B" herein, and as corrected, said parcel shall be excluded from the parcels within the area of land known as PAA3. SECTION 3. All other provisions of Ordinance No. 2015 -188 not specifically amended herein shall continue in force and effect; however, the provisions of this ordinance shall govern and control over any conflicting provisions of Ordinance No. 2015 -188, to the extent of any such conflict. SECTION 4. 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 and approval. PASSED AND APPROVED this the day of 12016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ffig APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ffig S:\Planning\Annexations\2016 Annexations\Nunc Pro Tune - New Fanns \Nunc Pro Tune Ordinance -New Fanns.docx EXHIBIT A Annexation Tract PAA3 (Page 1 of 3) BEGINNING at a point on the present Denton city limits line, described as the southwest corner of an annexation tract established and described in Ordinance 1985 -246 and further described therein as being on the centerline of F.M. 1173; THENCE North 87° 57' East, along the center line of F.M. 1173 and along the present Denton city limit line as established in said Ordinance 1985 -246 a distance of 310.5 feet to a point for corner; THENCE North 89° 39' East, along the center line of F.M. 1173 and along the present Denton city limit line as established in said Ordinance 1985 -246 a distance of 2,153.5 feet to a point for corner, said point also lying 500 feet west of and perpendicular to the center line of Interstate Highway 35, said point also being on the westerly line of a City of Denton annexation tract established and described in Ordinance 1969 -40 (Tract VI); THENCE South 02° 57' East, parallel to and 500 feet west of the center line of Interstate Highway 35, same being the present Denton city limit line established and described in Ordinance 1969 -40 (Tract VI), a distance of 45 feet to a point for corner, said point lying on the south right -of -way line of F.M. 1173 and also being the northeast corner of a City of Denton annexation tract established and depicted in Ordinance 20,07-268 (1'7' hibit A -:3 therein); THENCE South 89° 19' 54" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established, described and depicted in Ordinance 2007 -268 (Exhibit A and Exhibit A -3 therein), a distance of 1,801 feet to a point for a corner; I 1 II NCI South 88° 07' 35" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 99.83 feet to a point for a corner; THENCE North 880 37' 44" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 401.49 feet to a point for a corner; THENCE North 84° 33' 28" West along the south right -of -way line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit A therein), a distance of 100.64 feet to a point for a corner; THENCE North 870 39' 59" West along the south right -of -way. line of F.M. 1173, same being the north line of said City of Denton annexation tract established and described in Ordinance 2007 -268 (Exhibit 'A therein), a distance of 1,634.99 feet to a point for a corner, said point lying on the easterly right -of -way line of the Kansas City Southern Annexation Tract PAA3 (Page 2 of 3) Railway (formerly Gulf, Colorado �� ouoobntubn being the northwest comer of said Ordinance %O07'208 annexation tract; THENCE northwe._,'de�ng�e��ng�n��|�49���g�u� coumeuand di�un000uf the 'said easterly railroad h f- line m total distance of 9'501 feet to m point for ucomer; said point being the intersection ofLheom!d easterly railroad rigbt-uf-wuy line and the south right of way line mf{3omzerWest Road, THENCE in an easterly direction, along the courses and distances of the southerly implied r|obt-ot-vvuyUuoufGuozer \�eutRoad u total distance u[8,l82 feet toupoint fhrauomn~'uaidpoin1ly|ngon[he rementDenton city limit line established and described byannexation Ordinance 1987-141; THENCE South Ol" 58` East along the present Denton city limit line established and described by annexation Ordinance 1987-14 1, a distance of 922 feet to a point for comer, said point being the southwest comer of said Ordinance 1987-141 annexation tract and also lying on the north line of a City of Denton annexation tract established and described |u Ordinance l96g-40 (Tract VU; THENCE North 88' 53' West along the present Denton city limit line established and described by annexation Ordinance 1969-40 (Tract VI) a distance of 250 feet toapoint for comer, said point lying 5O0 feet west of the said center line if Interstate Highway 35 and being the northwest comer of said annexation Ordinance 1969-40 (Tract VI); THENCE South 00"44^ East parallel to and 5O0 feet west of said center line wfInterstate Highway 35 and along the present Dentori city limit line established and described by annexation Ordinance l969'40(Tcaot`�Du distance u[6,O87 feet toa point for uorne� said point lying 50O feet nvea1u' the said center line uf Interstate Highway 35 and being the northeast comer of said annexation tract established and described iuOrdinance lV85-246; THENCE North 89' 29` West along the present Denton city limit line established and described by annexation Ordinance 1985-246 a distance of 324.6 feet to a point for connmc ' THENCE South 89vl5'4O'` West along the present Denton city |im|tline eutuhUuhud and described by annexation Ordinance l905'240u distance nf}.00Dfeet tnu point for comer; THENCE North 090 28^ West along the pn:000t Denton city limit line established and described by annexation Ordinance 1985-246 a distance of 1,034.21 feet to a point for Annexation Tract PAA3 (Page 3 of 3) THENCE South 00° 25' 30" West along the present Denton city limit line established and described by annexation Ordinance 1985 -246 a distance of 1,271.72 feet to a point for corner; THENCE South 000 42' West along the present Denton city limit line established and described by annexation Ordinance 1985 -246 a distance of 426.35 to the POINT OF BEGINNING and containing 1,090 acres of land. S:\Planning\Annexations\2016 Annexations\Nunc Pro Tune - New Fanns \Nunc Pro Tune Ordinance -New Fanns.docx EXHIBIT B Being a called 55.81 acre tract of land, situated in the S. L. Johnson Survey, Abstract No. 683, Denton County, Texas, and being that portion lying outside of the city limits, of a 97.50 acre tract of land described in that certain Special Warranty Deed dated August 31, 2008 from Hassie Hunt Exploration Company to HHEC SpinCo, LLC, filed for record on September 5, 2008 and recorded in Instrument Number 2008 -97810 of the Real Property Records of Denton County, Texas. Said 55.81 acres, more or less, is commonly known as DCAD Property ID 37713. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -338, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development /Development Services CM/ ACM: Jon Fortune Date: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, approving an amendment to an economic development program grant agreement dated December 1, 2015, between the City of Denton and Buc -ee's, LTD., which was duly assigned, in part, to Buc -ee's, LTD.; and providing an effective date. BACKGROUND On December 1, 2015, the City Council approved an incentive for the Buc -ee's Travel Center project in order to reimburse the developer for public infrastructure improvements and other neighborhood /public amenities. It is a performance -based incentive that rebates a portion of local sales tax produced by the development. However, when executing the incentive agreement, it was discovered that a minor error in the property description existed, which the surveyor has corrected. This first amendment to the agreement will replace the incorrect description with the updated metes and bounds description. PRIOR ACTION/REVIEW (Council, Boards, Commissions) • December 1, 2015 - City Council approved Buc -ee's incentive agreement • November 17, 2015 - City Council Work meeting on Buc -ee's Project • November 17, 2015 - City Council Closed discussion on incentives • November 10, 2015 - City Council Closed discussion on incentives October 30, 2015 - City Council Closed discussion on incentives October 20, 2015 - City Council Closed discussion on incentives October 13, 2015 - City Council Closed discussion on incentives September 22, 2015 - Economic Development Partnership Board recommended approval of an incentive for the project 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 City of Denton Page 1 of 2 Printed on 2/26/2016 File M ID 16 -338, Version: 1 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 Exhibit 1 - Ordinance Exhibit 2 - Agreement Respectfully submitted: Aimee Bissett, Director Development Services Department Prepared by: Christina Davis Economic Development Specialist City of Denton Page 2 of 2 Printed on 2/26/2016 sAlegahour docwnents\ordinances\1 6\first amendment bue-ce's agreetnent.docx Exhibit 1 ORDINANCE NO. AN ORDINANCE OF IE CITY OF DENTON, TEXAS APPROVING AN AMENDMENT 1-0 AN ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT' DATE. D DECEMBER 1, 2015, BETWEEN THE CITY OF DENTON AND BUC-EE'S, LTD., WHICH WAS DULY ASSIGNED, IN PART, TO BUG -EE'S, LTD.; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an Amendment to an Economic Development Program Grant Agreement (the "Amendment") between the City of Denton and Buc-ee's, Ltd., which is duly assigned, in part, to Buc-ee's, Ltd. in substantially the form of the Amendment which is attached hereto and make a part of this ordinance for all purposes. SECTION 2. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties as set forth in the Amendment. 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: Exhibit 2 STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO ECONOMIC DEVELOPMENT AGREEMENT WITH BUC -EE' S, LTD. THIS FIRST AMENDMENT TO AN ECONOMIC DEVELOPMENT AGREEMENT made and entered into on the tenth day of December, 2015 by and between BUC -EE'S, LTD. ( "Grantee "), a Texas limited partnership, located at 327 FM 2004, Lake Jackson, Texas, 77566, and the CITY OF DENTON, TEXAS ( "City "), a Texas municipal corporation, located at 215 E. McKinney St., Denton, Texas, for the purposes and considerations stated below. Grantee and the City may be individually referred to as a "Party" and collectively as the "Parties." WITNESSETH WHEREAS, since the adoption of the December 10, 2015, Economic Development Agreement with Buc -ee's, Ltd. ( "Agreement "), the Parties have discovered that the legal description attached to the Agreement as Exhibit "A" is not correct; and WHEREAS, this First Amendment is for the purpose of adding the correct legal description by replacing the Agreement's Exhibit "A" with the one attached hereto; and NOW, THEREFORE, the City and Grantee agree to amend the Agreement as follows: SECTION 1. The attached Exhibit "A" is the true and correct legal description of the property subject to the Agreement, and said Exhibit "A" replaces the Agreement's Exhibit "A" in its entirety. SECTION 2. Save and except as amended hereby, all the remaining sections, paragraphs, sentences, clauses, and phrases of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas has caused this First Amendment to be executed by its duly authorized City Manager; and Grantee has executed on this the day of 12016. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ffig Page 2 Buc -ee's, Ltd., a Texas limited partnership By: Buc -ee's Management, LLC, a Texas limited liability company, its General Partner WE Arch H. Aplin III, President Exhibit A Being all that certain tract of land situated in the Joseph White St.mvey, Abstract Nuniber '1433, and in the Daniel b)mbard Survey, Abstract Number 784, in [lie City cJDenton, Denton Counh/, TenasandbeinQtherermainderofmtrac1cf|8UddeochbedirithedeedtVmP&HTH(A4AS F4K8ILYPAF |NERS. LTOtoER|-OENT0W3OLAA�. LP,,asrecorded in D0CmmBntNurDber 2006 '121570, Real Property f��eoordp of said County; the sUbieottn8oi being m0re pad(cu|ar|y described astUUows BE(:31W,J|WGs6acEIppE'diron rod nlamped"KAZ'' set for the South8mstoornarofsaid Remainder' and the Southwest oorn�rofo tract Ofland described in the deed to ER|DENTO14 38 LAND, L. Fl,, as recoi ded in Domin-rent Nurnber 2009-30150, of said Retords in the Nor-th kne n|@ tract ofland described in the deed to []ariuoh H, Heidary, K8D., as recorded in @oNrne 2980' Page 287. of said Records; Thence South 88 degrees 38 minutes 48 seconds, West with said oQ0r0On line, along and ne,�,ir afeMce adistaMce ofG8O3DfO8ttOacapped iron rod oharnpe(J"TNp` found for the �\Jodhaeot cornerofmaid Haid@ry tract and tho Northeast corner of Lot 28' Block 1 of Wind River Estates, Phase |V, an addition to s�,iid ("ity' according to the plat ihereofrc-uorded In Cabinet 3, Page 204, P/ni Records Qfoaid Counh/� Thence 1`3nuth 89 da8re(,,,B 33 minutes35 seconds West vvith the North line ofsaid B|ock 1 and the South |ineofsaid remainde/mdistance of 1O12.87 feet toa wood [enoE' corner post for the Southwest corner of said renl@iRder and the Southeast corner o| Lot 1Gof said Block 1� . Thence North 01 degrees 05 nOinutea 13 seconds West with the East |iOm of said Block, 1 pad of ftv� way and wilth the West line of said reinainder a distance of 1333.06 feet to a V2-" iron rod found for the Not theaat corner of Lot 27, B|oo< 1. of Southridge Eababea, Phame- 2' addition ho said Qty, ooCnrdiOg to the plat then$ofrecorded in Cabinet M. Page 97, of said Plat Records, and the Southeast corner ofa 50feat Utility Eaeem8nt.a5neoordedinVo|ume333' Page 10. Deed Re0nndSof said County; Hronce North 00 degrees 37 miriutes 33 seconds West with the East line thereof arid West line ofm8id remainder adiatanoeof38O.9B feet to the remainsofu wood mmnum8nt� . ThElnoe North 54degrees 10minutea388�cnnd8 East adistenC8pf18,88hseitnoTXDOT rnonun'ient found for the, Southwes[ oorrler of a tract (:)l land desorfbed in the deed to The Statc,-, VfTev,is'asraoOrdedinDocu0(,n[ Nunnber2U14-D1377.o{Said Real PrupeityFZeoordxond b�aing the �\loMhVveot uornurofsaid remainder: Thenmsw&h Said oommon|ineUhe following eight ua|ls� South 48degneemO2minutes40acoonduEesL154,89#aeth2aTXDC)Tmonunnentfnund� SOUth 60 degree,,� 37 minutes 1 � seconds [H,ast, 102.87 feet to a T'XDO"F monument fo�jrjcj� . SouUh45deynoaa4Bminu&s4OmeoondoEoat.1O1.3ihyeitoaTXD(TTmonumentfound� South 5O degrees 45minukaa 08 s(,)uondm Euat. 20, 31 feet to eTXD0T monumentfuund� . South 5Odmgm*8e47nninukas05 seconds East, 181,Q2 feet toaTX[)()TmonUmGntfoUnd� . SOuth 50 degrees 41 rniDubsm 16 seconds East, 297,2S feet bz oTXDOTmonumentfnund� South 51 degrees 20 rnim..ites 45 seconds East, 307, 11 feet to a TXDOT mortUrnent forind; EXHIBIT PRWFRTY PAGE 1 OF 3 Exhibit A Sor.dh 49 degmes 57 fflillutes 51 seconds East, 148,81 feet to as TXD01" monument found for the Southe-ast corrier of said State of Texas tract and the NorthElclSt rormz.�r of said remainder in [lie West line of a tract of land d(,-.,scribed in the deEA W MayhM Partnc,�,rs, L.P, as recorded in Document Nurnt)er 2006-136804, of said Real Properly 1�ecords; Therice South 32 d('-.,gr(,,,es 41 r niriutes 56 seconds East with said c',ornmon line a (I is tance of 694,21 fee[ to a iror) rod found for South cmner of said Mayhill tract and the West corner of Lot 1, Blo '.alp A of Action Carpet Addition, an a(AcMion to said City, according to the plat there; , rec.orded in N, Page 355, of said Plat Records; The South 32 degree�s 44 nflnutes 11 seconds E�"!".ast a distance of 369,22 feet to the PL/\CE"--' OF BEGINNING and enclosinilj 37,21 of land tnore or less. CV //I �5 ER EXHIBITA PROPERTY PAGE 2 OF 3 Exhibit A (t Cta i try AK " ", . "" , " i , l! ,'z 1, , % ,, E 1 BeNg all Rot certain frw t ofk.ind sTiMed in the Dardel WaSard Survey, Abst✓& Nhirriber 78t in He CTy of Denhn, Den= CouMy, nmas and being all of a �raci oHund described in the deod to klaylffll [�Iartners, LP, as rc,,,,corded ijin Docaunt-.,rif Nurnber 2r„ 06 1 of saki Flea! F*Dperty Ffeccwts; BEGANWR3 at as V��` iron ro(J fouruci in the S( )uth riodakway of lntersta�e, 135E for ffie Nlodh CCOK,r Of, [,vlayhil1 tnact cam] [he 114orfheast cmnm of a but of lamd (,J(,.,,s(,Afacd in the, dc,,,(,,,,d 'I he E,,t fl e (A Texmb as mcoNed A 6 yOCLPIM-9 Nwaber 201,091877, of sall Wal Proped.y F, ecwws; I hence, Sm.dh 51 degues 31 minute,,.,r 30 seconds East YwRh saW 105E and NmlwaW its of sMd NIQU Uact a Wance of 73RA 8 W to a IV Van wcltound for the Eas com(u,r fl iereof arld U ie WS carner of 1-ot 'I, Blocl,,,. A, (.J/\cfio i Carpcd AdAMwq an a(,:.Jdition to -.; Jd City, ,-,ac.cording to pbt f e,ne *f recorded in (`,,,ablnet N, l"age 355, l_,Ze;-.,(,rds of ,,,aid (�'.ounty; lliell(,'E South 38 degrees 31 rnMuWs 55 semmds Wwt wKh said cornmon a distar�ce of 2,51A5'IeE,HD a irons Tod found for Me common =nertherec4 in ffie East kne of the ismaindw W a Rad of Wd descHbed in the, (aeed frorn 1=I&F-1 THWAA,�,`) FAI➢LY F�IARTNEI,'S, LTD to ERl .DEI\RIUN38 LAND, UT, as recmded W Docinnent 1" a lumber:2006-121570, Real Property fRecorcls of said (::�ounty; Tlience N(,nth 32 degmes 41 minutes 56 seconds Vies[ ;vRh said cofrirnon llm.:) a (�HsWrjce of 694.21 feet to a 1-XDOT rriom.irnp nt found for the SOLIflIG'ast corner ()f said State tract; Thwwe Nonh 32 degmes 46 mhuhs 59 sewm],; West a distanc of 85.39 feet to U'ie f IL ACE OF BEGlNNING and enclosing 2,13 acres,, of land rnore or less IV 1. r-A r" CIF bpi "A 1V u-1 EXFHBIT A PROPERTY PAGE 3 OF 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -346, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley, Assistant City Manager Date: March 1, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving a Reimbursement Agreement amongst the City of Denton, Texas, Allegiance Hillview, L.P., and DB Denton II, LLC related to the reimbursement of public improvements constructed within the Rayzor Ranch Public Improvement District No. l; authorizing the City Manager to execute the Reimbursement Agreement on behalf of the City of Denton, Texas; and providing for an effective date. BACKGROUND On May 13, 2014, the City Council adopted a resolution (R2014 -022) which created a Public Improvement District (PID) for the south side of the Rayzor Ranch development. A PID is a financing mechanism which allows properties in the district to be charged a special assessment to construct infrastructure or pay for other services in the area. These assessments are paid by the property owner, not the City. The Rayzor Ranch PID is subject to the terms and conditions identified in the Memorandum of Understanding (MOU) approved in May 2014. Additionally, this MOU also established the financing criteria and limitations for the PID. Since the formation of the PID in 2014, Red Development has been working to construct the infrastructure on the south side of Rayzor Ranch so that development can occur. This infrastructure is nearing completion, and Red Development would like to establish an agreement which outlines the terms of how the costs related to this infrastructure could be reimbursed to the developer once the PID begins charging special assessments and potentially issuing bonds. Due to state law, an agreement must be in place prior to the formal dedication and acceptance of infrastructure improvements in order for the costs to be reimbursed from the PID special assessments or bonds. It is anticipated that, following the approval of this agreement, the infrastructure improvements will be formally dedicated to the City, and several businesses will begin operating in late spring. Subsequent to this, the developer and City will finalize the PID service assessment and financing plan in order to reimburse these costs, and others, at some point in the future. To accomplish the above objective, staff has worked with our legal team and bond counsel to develop the attached reimbursement agreement. This document has been agreed to by all parties, and we recommend that the City Council approve the agreement. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -346, Version: 1 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: 3.1 Develop targeted policies and incentives to achieve desired economic growth EXHIBITS Exhibit 1 - Resolution 2014 -022 Exhibit 2 - Ordinance 2014 -144 Exhibit 3 - Reimbursement Agreement Respectfully submitted: Bryan Langley Assistant City Manager City of Denton Page 2 of 2 Printed on 2/26/2016 s: \legal \our documents \resolutions \l4 \5 -6 -14 resolution creating rayzor ranch pid #Ldoc RESOLUTION NO. 014 -022 A RESOLUTION OF THE CITY COUNCIL OF DENTON, TEXAS, MAKING FINDINGS THAT THE PROPOSED RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO. 1 AND THE PROPOSED PUBLIC IMPROVEMENTS WILL PROMOTE THE INTERESTS OF THE CITY AND CONFER A SPECIAL BENEFIT ON A DEFINABLE PART OF THE CITY; PROVIDING THAT THE DISTRICT AND PROPOSED PUBLIC IMPROVEMENTS ARE FEASIBLE AND ADVISABLE; PROVIDING FINDINGS WITH RESPECT TO THE NATURE AND ESTIMATED COST OF THE PROPOSED PUBLIC IMPROVEMENTS, THE BOUNDARIES OF THE DISTRICT, THE METHOD OF ASSESSMENT, AND APPORTIONMENT OF COSTS BETWEEN THE DISTRICT AND THE CITY; AUTHORIZING THE CREATION OF THE DISTRICT AND DIRECTING THE CITY SECRETARY OR OTHER OFFICER TO PUBLISH NOTICE OF THE CREATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the governing body (the "City Council ") of the City of Denton, Texas (the "Cily"), is authorized by Chapter 372, Texas Local Government Code, as amended (the "Act "), to create public improvement districts within the corporate limits and extraterritorial jurisdiction of the City; and WHEREAS, on March 25, 2014, Allegiance Hillview, L.P., a New York limited partnership and DB Denton II, LLC, a Delaware limited liability company submitted and filed with the municipal secretary of the City (the "City Secretary ") a petition (the "Petition ") requesting the creation of Rayzor Ranch Public Improvement District No. 1 (the "District ") consisting of property within the corporate limits of the City, which property is described in the Petition and is the same property described by metes and bounds on the attached Exhibit A and depicted by the drawings on the attached Exhibit B (the "Property"); and WHEREAS, the Petition has been on file with the City Secretary and available for public inspection at all times after it was submitted and filed; and WHEREAS, the City Council has investigated and determined that the Petition complies with and is sufficient under the Act to create the District; and WHEREAS, the City Council has investigated and determined that the matters set forth in the Petition are true and correct; and WHEREAS, the City Council has investigated and determined that the public improvements described in the Petition (the "Public Improvements ") are authorized by the Act, promote the interests of the City, and confer a special benefit on the Property; and WHEREAS, the City Council has investigated and determined that the District may be created without a preliminary financial report and without the appointment of an advisory body; and s: \legal \our documents\resoIutions \14 \5 -6 -14 resolution creating rayzor ranch pid fl. WHEREAS, on April 1, 2014, the City Council approved Resolution No. 2012 -012 accepting the Petition, setting a public hearing for May 6, 2014 (the "Public Hearing ") to take public testimony on the feasibility and advisability of creating the District and the feasibility and advisability of the proposed Public Improvements and authorizing and directing the City Secretary to publish and mail notices of the Public Hearing as required by the Act; and WHEREAS, on or before April 16, 2014, the City Secretary caused notice of the Public Hearing to be published in a newspaper of general circulation in the area where the proposed District is located; and WHEREAS, on or before April 16, 2014, the City Secretary caused notice of the Public Hearing, addressed to "Property Owner," to be mailed to the current address (as reflected on the tax rolls) of owners of property subject to assessment under the proposed District; and WHEREAS, the City Council has investigated and determined that the published and mailed notices of the Public Hearing complied with the Act and were published and mailed before the 151h day before the date of the Public Hearing as required by the Act; and WHEREAS, after publishing, mailing, and otherwise providing all notices required by the Act and state law, the City Council, conducted the Public Hearing on May 6, 2014, at the time and place, and for the purposes, set forth in the notices; and WHEREAS, after all persons having an interest in the creation of the District were given an opportunity to be heard, the City Council closed the Public Hearing on May 6, 2014; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The matters set forth in the "WHEREAS" recitals in this Resolution are true and correct, are fully incorporated as part of this Resolution for all purposes, and constitute findings of the City Council acting in its legislative capacity. SECTION 2. The form and content of the Petition, the form, content, and timing of the notices of the Public Hearing, and the conduct of the Public Hearing were in compliance with all requirements of the Act and are hereby ratified and approved. SECTION 3. The City Council, after considering the Petition, information provided by the City staff, and the evidence, information, and testimony presented at the Public Hearing, makes the following findings, each of which represents the exercise by the City Council of its legislative authority and discretion: (1) The creation of the District and the undertaking and financing of the Public Improvements promote the interests of the City; (2) The creation of the District and the undertaking and financing of the Public Improvements confer a special benefit on a definable part of the City identified herein as the Property; Page 2 1915.010\29486.2 s: \legal \our documents\resolutions \14 \5 -6 -14 resolution creating rayzor ranch pid #l.doc (3) The creation of the District and the undertaking and financing of the Public Improvements are advisable and feasible; (4) The proposed Public Improvements are authorized by Section 372.003 of the Act and include, but are not limited to, the improvements described below. Improvements that are eligible under that certain Economic Development Program Grant Agreement with Allegiance Hillview, L.P. between Allegiance Hillview, L.P. and the City effective June 15, 2010, will not include Public Improvements undertaken and financed through the District. a. arterial, collector, and local street improvements including, but not limited to, grading, drainage channels and structures, storm drains, retention basins, paving, curb, gutter, sidewalks, medians, landscaping, street lights, traffic signals, sewer lines, utility lines and appurtenances, irrigation lines and facilities, signing and striping, dust control and erosion protection, any necessary transitions, tapers and temporary improvements to existing roadways and facilities, and other associated improvements; b. Interstate Highway I -35 frontage roads and associated entry /exit ramp reversal improvements including, but not limited to, grading, drainage channels and structures, storm drains, retention basins, paving, curb, gutter, sidewalks, medians, landscaping, street lights, traffic signals, sewer lines, utility lines and appurtenances, irrigation lines and facilities, signing and striping, dust control and erosion protection, any necessary transitions, tapers and temporary improvements to existing roadways and facilities, and other associated improvements; C. sanitary sewer line improvements from the main collector and arterial roadways through the Property to serve individual lots and pad sites; d. water line improvements from the main collector and arterial roadways through the Property to serve individual lots and pad sites; and e. storm water improvements. (5) The estimated cost of the proposed Public Improvements is $40,000,000. (6) The boundaries of the proposed District are the boundaries of the approximately 229.693 contiguous acres within the corporate limits of the City generally located east of Interstate Highway 35, north of Scripture Street, west of Bonnie Brae Street, and south of West University Drive (U.S. Highway 380) and described by metes and bounds on Exhibit A and depicted by the drawings on Exhibit B attached hereto. (7) The method of assessment (which shall be adopted by ordinance of the City Council after notice and another public hearing in accordance with the Act) will impose equal shares of the cost of the proposed public improvements on parcels that are similarly benefited. Before assessments are levied, a Service and Assessment Plan will be prepared on behalf of the City Council and made available for public inspection that describes in greater detail the method by which assessments may be levied against the Property and against parcels that result from the subdivision of the Property and the amount of the assessments against each parcel. Once levied, the principal amount of the assessments may be reduced but not increased. All assessments shall be due and payable in accordance with the ordinance adopted by the City Council and may be paid in full at any time, together with interest through the date of payment. Assessments levied by the City Council, if not paid in full, may be paid in annual installments which may vary in amount from year to year as approved each year by the City Council, including an amount to pay principal, interest, costs of collection, costs of administration, and costs and penalties due to Page 3 1915.010\29486.2 sAlegal \our documents\resolutions \14 \5 -6 -14 resolution creating rayzor ranch pid #1.doc delinquencies. If an assessment is paid in installments, the installments must be in amounts necessary to meet annual costs for the Public Improvements and must continue for a period necessary to retire the indebtedness of the Public Improvements. Assessments may be effective (including the liens created against the Property) as of the effective date of the ordinance that levies the assessments; however, the ordinance may provide that the accrual of interest or the collection of annual installments, or both, may be deferred in accordance with any terms and conditions imposed by the City Council in the ordinance. If assessments are levied based on estimates of the costs of the Public Improvements, the levy must be structured so that it will be reduced in the event the actual costs are less than the estimate. (8) The costs of the Public Improvements will be apportioned solely to the District and none to the City. SECTION 4. The District is authorized, established, and created as a public improvement district under the Act. SECTION 5. The District shall be known as Rayzor Ranch Public Improvement District No. 1. SECTION 6. The City Secretary is hereby authorized and directed to cause the caption of this Resolution (together with a general description of the Property) to be published one time in a newspaper of general circulation in the area where the District is located as required by the Act; whereupon the authorization of the District shall take effect. SECTION 7. This Resolution has been approved by majority vote of all members of the City Council and constitutes the improvement order establishing and creating the District in accordance with the Act. _SECTION 8. This Resolution shall take effect immediately from and after its passage and publication as required by this Resolution and the Act. PASSED AND APPROVED this the day of &L w_ , 2014. W MARK`A. BURR0J1Ck1S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY 1 Page 4 1915.010\29486.2 s:\Iegal\our documents\resolutions\14\5-6-14 resolution creating rayzor ranch pid 4 Ldoc BY: Page 5 1915.010\29486.2 Exhibit A Legal Description of the Property METES AND BOUNDS DESCRIPTION BEING a 231.693 acre tract of land situated In the B.B.B. & C. R.R. Survey, Abstract Number 192, Denton County, Texas, In the City of Denton. Being a portion of the tract of land described as Tract One in the deed to Allegiance Hillview, L.P. recorded in Document Number 2006 - 41743, Deed Records of Denton County, Texas and all of Lot 3, Pearcy /Christon Addition No. 1, an addition to the City of Denton, according to the plat recorded in Cabinet B, Page 34, Plat Records of Denton County, Texas, also being all of the tract of land described in the deed to DB Denton II, LLC recorded in Document Number 2010 - 74478, Deed Records of Denton County, Texas and being a portion of Block 1, Rayzor Ranch South Conveyance Plat according to the Conveyance Plat recorded in Cabinet Y, Slide 470, Plat Records of Denton County, Texas, said 231.693 acre tract of land being more particularly described as follows: BEGINNING at the point of Intersection of the easterly right —of —way line of Interstate Highway 35 (a variable width right —of —way) with the southerly right —of —way line of University Avenue (a variable width right —of —way) as described In the Instrument recorded In Document Number 2010 - 69548, Deed Records of Denton County, Texas; THENCE with the southerly right —of —way line of University Avenue the following: South 88° 51' 08" East a distance of 233.78 feet to the point of curvature of a curve to the right having a radius of 4,950,00 feet; Southeasterly along said curve through a central angle of 01° 49' 37" an arc distance of 157.83 feet with a chord bearing of South 87° 56' 20" East and a chord distance of 157.83 feet to the point of tangency of said curve; South 87° 01' 32" East a distance of 75.84 feet to the point of curvature of a curve to the left having a radius of 5,050.00 feet; Southeasterly along said curve through a central angle of 01° 49' 36" an arc distance of 161.01 feet with a chord bearing of South 87° 56' 20" East and a chord distance of 161.00 feet to the point of tangency of said curve; South 88° 51' 08" East a distance of 135.55 feet to a point for corner; South 431 51' 08" East a distance of 42.43 feet to a point for corner; North 85° 26' 14" East a distance of 110.55 feet to a point for corner; North 46° 08' 52" East a distance of 42.43 feet to a point for corner; South 88° 51' 08" East a distance of 156.45 feet to the point of curvature of a curve to the right having a radius of 185.00 feet; Southeasterly along said curve through a central angle of 06° 16' 36" an arc distance of 20,27 feet with a chord bearing of South 85° 42' 50" East and a chord distance of 20.26 feet to the point of tangency of said curve; South 82° 34' 33" East a distance of 78.68 feet to the point of curvature of a curve to the left having a radius of 215.00 feet; Continued next page... SHEET 1 OF 8 Exhibit A to Resolution Creating Rayzor Ranch PID 1 Page 1 1915.010\29486.1 Exhibit A Legal Description of the Property Continued ... Southeasterly along said curve through a central angle of 06' 16' 36" an arc distance of 23.55 feet with a chord bearing of South 85' 42' 50" East and a chord distance of 23.54 feet to the point of tangency of said curve; South 88' 51' 08" East a distance of 248.29 feet to the beginning of a non — tangent curve to the left, the radius point of said curve being situated North 01' 10' 45" East a distance of 5,050.11 feet from said point; Southeasterly along said curve through a central angle of 01' 10' 25" an arc distance of 103.44 feet with a chord bearing of South 89' 24' 27" East and a chord distance of 103.44 feet to the end of said curve; North 84' 31' 22" East a distance of 125.28 feet to a point for corner; North 89' 27' 11" East a distance of 26.81 feet to the point of curvature of a curve to the right having a radius of 185.00 feet; Southeasterly along said curve through a central angle of 06' 16' 38" an arc distance of 20.27 feet with a chord bearing of South 87' 24' 30" East and a chord distance of 20.26 feet to the point of tangency of sold curve; South 84' 16' 11" East a distance of 78,67 feet to the point of curvature of a curve to the left having a radius of 215.00 feet; Southeasterly along said curve through a central angle of 06' 16' 38" an arc distance of 23.56 feet with a chord bearing of South 87' 24' 30" East and a chord distance of 23.54 feet to the point of tangency of said curve; North 89' 27' 11" East a distance of 290.19 feet to a point for corner; South 44' 41' 59" East a distance of 41.80 feet to a point for corner; North 83' 45' 42" East a distance of 110.92 feet to a point for corner; North 45' 18' 01" East a distance of 43.05 feet to a point for corner; North 89' 27' 11" East a distance of 217.23 feet to the point of curvature of a curve to the right having a radius of 4,961,00 feet; Northeasterly along said curve through a central angle of 00' 56' 55" an arc distance of 82.15 feet with a chord bearing of North 89' 55' 38" East and a chord distance of 82.15 feet to a point in the westerly line of Lot 2 of said Pearcy /Christon Addition No. 1; THENCE departing the southerly right —of —way line of University Drive with the westerly line of said Lot 2, Pearcy /Christon Addition No. 1 South 01' 08' 26" West a distance of 593.84 feet to the southwesterly corner of said Lot 2, Pearcy /Christon Addition No, 1; Continued next page... SHEET 2 OF 8 Exhibit A to Resolution Creating Rayzor Ranch PID I Page 2 1915.010\29486.1 Exhibit A Legal Description of the Property Continued... THENCE departing the westerly line of said Lot 2, Pearcy /Christon Addition No. 1 with the southerly line of said Lot 2, Pearcy /Christon Addition No. 1 South 89' 04' 34" East a distance of 691.50 feet to a point in the westerly right —of —way line of Bonnie Brae Street (a variable width right —of —way) as described in the instrument recorded In Document Number 2008 - 96935, Deed Records of Denton County, Texas; THENCE with the westerly right —of —way line of Bonnie Brae Street the following: South 00' 53' 07" West a distance of 481,67 feet to a point for corner; South 01' 03' 42" West a distance of 956.92 feet to a point for corner; South 00' 59' 47" West a distance of 821.01 feet to a point in the easterly extension of the northerly line of the tract of land described in Exhibit X of the instrument recorded In Document Number 2008 - 80692, Deed Records of Denton County, Texas; THENCE departing the westerly right —of —way line of Bonnie Brae Street with the easterly extension of and the northerly line of the tract of land described in said Exhibit X North 89' 11' 09" West a distance of 297.98 feet to the northwesterly corner of the tract of land described in said Exhibit X; THENCE departing the northerly line of the tract of land described in said Exhibit X with the westerly line of the tract of land described in said Exhibit X South 00' 48' 51" West a distance of 482.75 feet to the southwesterly corner of the tract of land described In said Exhibit X; THENCE departing the westerly line of the tract of land described in said Exhibit X with the easterly extension of and the southerly line of the tract of land described in said Exhibit X South 89' 11' 09" East a distance of 263.85 feet to a point In the westerly right —of —way line of Bonnie Brae Street in a non — tangent curve to the right having a radius of 279.87 feet; THENCE with the westerly right —of —way line of Bonnie Brae Street the following: Southwesterly along said curve through a central angle of 16' 58' 20" an arc distance of 82.90 feet with a chord bearing of South 37' 25' 10" West and a chord distance of 82.60 feet to the point of reverse curvature of a curve to the left having a radius of 437.01 feet; Southwesterly along said curve through a central angle of 56' 13' 56" an arc distance of 428.90 feet with a chord bearing of South 17' 47' 22" West and a chord distance of 411.89 feet to the end of said curve; South 39' 46' 07" West a distance of 25.02 feet to a point in the northerly right —of —way line of Scripture Street (a variable width right —of —way); THENCE departing the westerly right —of —way line of Bonnie Brae Street with the northerly right —of —way line of Scripture Street North 88' 58' 00" West a distance of 373.11 feet to the southeasterly corner of the tract of land described In the deed to Cook Children's Health Care System recorded In Document Number 2008 - 116772, Deed Records of Denton County, Texas also being Lot 2, Block 3, Rayzor Ranch South Conveyance, according to the Conveyance Plat recorded In Cabinet Y Page 690, Plat Records of Denton County, Texas; Continued next page... SHEET 3 OF 8 Exhibit A to Resolution Creating Rayzor Ranch P1D 1 Page 3 1915.010\29486.1 Exhibit A Legal Description of the Property Continued... THENCE departing the northerly right —of —way line of Scripture Street with the easterly lines of said Cook Children's Health Care System tract the following; North 01` 04' 41" East a distance of 469,52 feet to a point for corner; North 88° 57' 19" West a distance of 270.25 feet to a point for corner; North 01° 02' 41" East a distance of 266.87 feet to a point for corner; North 06° 56' 52" West a distance of 192.19 feet to the most northerly northeast corner of said Cook Children's Health Care System tract; THENCE departing the easterly lines of said Cook Children's Health Care System tract with the northerly lines of said Cook Children's Health Care System tract the following; South 83° 18' 21" West a distance of 349.09 feet to the point of curvature of a curve to the right having a radius of 1,032.50 feet; Southwesterly along said curve through a central angle of 03° 02' 20" an arc distance of 54.76 feet with a chord bearing of South 84° 49' 31" West and a chord distance of 54.76 feet to the point of tangency of said curve; South 86° 20' 41" West a distance of 37.69 feet to the most northerly northwest corner of said Cook Children's Health Care System tract: THENCE departing the northerly line of said Cook Children's Health Care System tract with the westerly lines of said Cook Children's Health Care System tract the following: South 39° 41' 53" West a distance of 19.91 feet to a point for corner; South 06° 56' 52" East a distance of 26.90 feet to a point of curvature of a curve to the right having a radius of 693.00 feet; Southeasterly along said curve through a central angle of 08° 01' 33" an arc distance of 97.07 feet with a chord bearing of South 02° 56' 06" East and a chord distance of 96.99 feet to the point of tangency of said curve; South 011 04' 41" West a distance of 208,63 feet to a point for corner; North 881 55' 19" West a distance of 3.00 feet to a point for corner; South 01° 04' 41" West a distance of 509,21 feet to a point for corner; South 43° 55' 19" East a distance of 19.86 feet to a point in the northerly right —of —way line of Scripture Street; Continued next page... SHEET 4 OF 8 Exhibit A to Resolution Creating Rayzor Ranch FID I Page 4 1915.010\29486.1 Exhibit A Legal Description of the Property Continued.., THENCE departing the westerly lines of said Cook Children's Health Care System tract with the northerly right —of —way line of Scripture Street North 88' 58' 00" West a distance of 109.20 feet to the southeasterly corner of the tract of land described in the deed to Texas Oncology Properties, LLC recorded in Document Number 2006 - 142313, Deed Records of Denton County, Texas; THENCE departing the northerly right —of —way line of Scripture Street with the easterly line of said Texas Oncology Properties, LLC tract North 01' 02' 00" East a distance of 500.06 feet to the northeasterly corner of said Texas Oncology Properties, LLC tract; THENCE departing the easterly line of said Texas Oncology Properties, LLC tract with the northerly line of said Texas Oncology Properties, LLC tract and the northerly line of Lot 1, Block 1, Rehab Hospital, an addition to the City of Denton according to the plat recorded in Cabinet X, Page 929, Plat Records of Denton County, Texas North 88' 58' 00" West a distance of 761.56 feet to a point in the easterly line of the tract of land described in the deed to 3100 1 -35 N, LLC recorded in Document Number 2011 - 109831, Deed Records of Denton County, Texas for the northwesterly corner of said Lot 1, Block 1, Rehab Hospital; THENCE departing the northerly line of said Lot 1, Block 1, Rehab Hospital with the easterly line of said 3100 1 -35 N, LLC tract North 01' 02' 00" East a distance of 2.45 feet to a point in a non — tangent curve to the right having a radius of 532.50 feet for the northeasterly corner of said 3100 1 -35 N, LLC tract; THENCE with the northerly lines of said 3100 1 -35 N. LLC tract the following: Southwesterly along said curve through a central angle of 03' 15' 22" an arc distance of 30.26 feet with a chord bearing of South 67' 48' 19" West and a chord distance of 30.26 feet to the end of said curve; South 14' 43' 28" East a distance of 6.13 feet to a point in a non — tangent curve to the right having a radius of 638.00 feet; Southwesterly along said curve through a central angle of 05' 40' 50" an arc distance of 63.25 feet with a chord bearing of South 72' 26' 08" West and a chord distance of 63.23 feet to the point of tangency of said curve; South 75' 16' 32" West a distance of 369,19 feet to a point for corner; South 30' 37' 54" West a distance of 42.69 feet to a point in the easterly right —of —way line of Interstate Highway 35 for the northwesterly corner of said 3100 1 -35 N, LLC tract; THENCE departing the northerly lines of said 3100 1 -35 N, LLC tract with the easterly right —of —way line of Interstate Highway 35 the following: North 16' 24' 00" West a distance of 3190.03 feet to a point for corner; North 14° 50' 06" East a distance of 171,01 feet to a point for corner; North 46' 04' 12" East a distance of 303.95 feet to a point for corner; North 60' 32' 22" East a distance of 68.86 feet to the POINT OF BEGINNING; Continued next page... SHEET 5 OF 8 Exhibit A to Resolution Creating Rayzor Ranch PID 1 Page 5 1915.010\29486.1 Exhibit A Legal Description of the Property Continued— CONTAINING a computed gross area of 231,693 acres (10,092,547 square feet) of land. SAVE AND EXCEPT the following described tract. BEING a 2.000 acre tract of land situated In the B.B.B. & C. R.R. Survey, Abstract Number 192, Denton County, Texas, in the City of Denton, Being all of the tract of land described in the deed to the City of Denton recorded in Document Number 2010 - 32727, Deed Records of Denton County, Texas, said 2.000 acre tract of land being more particularly described as follows: COMMENCING at the northwesterly corner of right —of —way for Bonnie Brae Street as described in the instrument recorded in Document Number 2008 - 96935, Deed Records of Denton County, Texas; THENCE with the westerly right —of —way line of Bonnie Brae Street South 00° 53' 07" West a distance of 45.00 feet to a point for corner; THENCE departing the westerly right —of —way line of Bonnie Brae Street North 89° 04' 34" West a distance of 58,75 feet to the POINT OF BEGINNING; THENCE South 00° 53' 07" West a distance of 295.16 feet to a point for corner; THENCE North 89° 04' 34" West a distance of 295.16 feet to a point for corner; THENCE North 00° 53' 07" East a distance of 295.16 feet to a point for corner; THENCE South 89° 04' 34" East a distance of 295,16 feet to the POINT OF BEGINNING; CONTAINING a computed area of 2,000 acres (87,119 square feet) of land. LEAVING a net computed area of 229.693 acres (10,005,428 square feet) of land. Exhibit A to Resolution Creating Rayzor Ranch PFD 1 Page 6 1915.010\29486.1 Exhibit B Depiction of the Property WEST UNIVERSITY DRIVE/U.S. 380 U w Z (VARIABLE WIDTH RIGHT—OF—WAY) DOCUMENT NUMBER U U J z I- 2010-69546 L1 C6 L7 C3 C4 L9 C5 t C7 CI L2 C2 L3 L5 L13 L —SAVE AND EXCEPT ACRES 2.000 (87.119 SQUARE FEET) LLJ CL L4 \_L6 Lo L58 04—/ L15 —L18 ILL] Z Z Ijf 06 0 L12 Z &! EXHIBIT X j3 0 1 LL POINT OF BEGINNING Ln RAYZOR RANCH SOUTH CTI L20 At CABINET Y. SLIDE 470 ?: 0 OVERALL U') 0 Cam Lo C' 27o� z 270� BLOCK ' 7 DENTON MED, LP LOT 2. BLOCK 3 S897! z RANCH RAYZOR RANCH DOCUMENT '0 SOUTH SOUTH '0 QL 71.01' NUMBER E AN E 2007-108635 CONVEYANCE CABINET Y, .0 T Y L317, wx z SUDE 690 z 15139-04`34-E_,/ L33 Iq DB DENTON 11, U.C. NUMBER LOT 3 PEARCY/CHRISTON L38 DOCUMENT 2010-74476 ADDITION NO. 1 CABINET B, PACE 34 A 5 LOT 1, BLOCK 5 RAYZOR RANCH SOUTH CONVEYANCE DOCUMENT NUMBER SAVE AND EXCEPT TRACT 2010-119 2,000 ACRES (87,119 SQUARE FEET) LOT 1, BLOCK 2 RAY70R RANCH SOUTH CONVEYANCE PLAT CABINET Y, SLIDE 470 CITY OF DENTON DOCUMENT NUMBER 2010-32727 �-A ,,A [in LOT �, AtOr% 4 RAY20R. RAND H WVTFt CONVE"AINCIE 3100 1-35N, LLC. DOCUMENT NUMBER 2011-109831 rL26 L27 37311' SCRIPTURE STREET\ (VARIABLE WIDTH RIGHT—OF—WAY) \ COOKS CHILDREN'S TEXAS ONCOLOGY HEALTH CARE SYSTEM PROPERTIES, LLC DOCUMENT NUMBER DOCUMENT NUMBER 2008-116772 2006-142313 Exhibit B to Resolution Creating Rayzor Ranch PID I Page 1 1915.010\29486A w U.J U J GROSS ACRES 231.693 (10,092,547 SQUARE FEET) =w —SAVE AND EXCEPT ACRES 2.000 (87.119 SQUARE FEET) 8 �f ILL] NET ACRES 229.693 (10,005,428 SQUARE FEET) m < Z &! EXHIBIT X 0 < BLOCK 1 L21 DOCUMENT NUMBER Nag*ii'og'w 8— CONVEYANCE PLAT 21308-80692 297.98' Ln RAYZOR RANCH SOUTH CTI L20 CABINET Y. SLIDE 470 ?: U') 1481�858'00'W L25-- P N'-57'1� mm5v P N88-57'19"W S W 27o� z 270� BLOCK ' 7 DENTON MED, LP LOT 2. BLOCK 3 S897! RANCH RAYZOR RANCH DOCUMENT '0 SOUTH SOUTH '0 'Ib�309-E a, 0 NUMBER E AN E 2007-108635 CONVEYANCE CABINET Y, .0 T Y wx z SUDE 690 z rL26 L27 37311' SCRIPTURE STREET\ (VARIABLE WIDTH RIGHT—OF—WAY) \ COOKS CHILDREN'S TEXAS ONCOLOGY HEALTH CARE SYSTEM PROPERTIES, LLC DOCUMENT NUMBER DOCUMENT NUMBER 2008-116772 2006-142313 Exhibit B to Resolution Creating Rayzor Ranch PID I Page 1 1915.010\29486A Line Table Line Bearing Distance Number Number Angle Ll S88'51'08"E 233.78' L2 587'01'32"E 75.84' L3 S88 51'08 "E 135.55' L4 S43'51'08"E 42,43' L5 N8526'1 4"E 110.55' L6 N46*08'52"E 42.43' L7 S88'51'08"E 156.45' L8 S82'34'33"E 78.68' L9 588'51'08"E 248.29' L10 N84'31'22"E 125.28' LI 1 N89'27'1 1 "E 26.81' L12 S84'1 6'11 "E 78.67' U3 - - N89'27'1 1 "E - ------ -- - 290.19' L14 S44'41'59"E 41.80' L15 N83'45'42"E 110.92' L16 �VE43.05' N45'1 8. 6'16'38" L17 N 139.27 N89'27'1 1 "E 217.23' L18 539-46'07"W 25.02' L19 N06-56'52"W 192.19- L20 S83-18'21 "W 349.09' L21 1 W S86'20'41 "W Sa 2 0 4 37.69' L22 -S 1 5 3 W S39'41'53"W 3 4 19.91' 193 6 E S06'56'52"E So9 5 6 5 2 26.90' L24 Sol. 04-4 1 W SO 1'04'41 "W 208.63' L25 N88'55'1 9"W 3.00' L26 543'55'19 "E 19.86, . .......... L27 N88'58'00'W 109.20' L28 N01*02'00"E 2.45' 199 S14*43'28"E 6.13' L30 S30'37'54"W 42.69' L31 N46 °04'1 2 "E 303.95' L32 N60'32'22"E 68.86' L33 S89'04'34"E 295.16' - L34 ----------------- S00'53'07"W - 295.16' L35 N89'04'34"W 295.16' L36 N00 '53'07"E 295.16' L37 500'53'07"W 45.00' L38 N89-04'34"W 58.75'' Exhibit B Depiction of the Property Curve Table Curve Cent r"' Irc Chord Bearing Number Angle Radius Length and Distance C1 1'49'37" 4950.00' 157.83' S87'56'20"E 157.83' C2 1*49'36" 5050.00' 161.01' 587'56'20"E 161.00' C3 6 °16'36" 185.00' 20.27' 585'42'50"E 20.26' C4 6'16'36" 215.00' 23,55' 585*42'50"E 23.54' C5 1 °1 0'25" 5050.11' 103.44' S89 °24'27 'E 103.44' C6 6'16'38" 185,00' 20.27' S87'24'30"E 20.26' C7 6'16'38" 215.00' 23.56' S87*24'30"E 23.54' C8 0 °56'55" 4961.00' 82.15' N89*55'38"E 82.15' C9 16'58'20" 279.87' 82.90' S37-25'10"W I.- 82,60' C10 56'13'56" 437.01' 426.90' .......... S17'47'22"W 411.89' C11 3'02'20" 1032.50 54 7 6' S84'49'31 "W 54.76' C12 8-01-33" 693.00' 97.07' S02-56'06 "E 96.99- C13 3-15'22" 532.50' 30.26' S67'48'19"W 30,26' C14 5'40'50" 638.00' 63.25' ..,.S72'26'08"W 63.23' Exhibit B to Resolution Creating Rayzor Ranch PID I Page 2 1915.010\29486.1 R♦ + ! ! + AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A MEMORANDUM OF UNDERSTANDING REGARDING TERMS AND CONDITIONS FOR THE RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO. l; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton (the "City ") is a home rule municipality and political subdivision of the State of Texas; and WHEREAS, Allegiance Hillview, L.P., a New York limited partnership ( "Allegiance "), and DB Denton II, LLC, a Delaware limited liability company ( "DB Denton ") have petitioned the City requesting the establishment of a public improvement district within the corporate limits of the City to be known as Rayzor Ranch Public Improvement District No. 1 (the "District ") pursuant to Chapter 372, Texas Local Government Code, as amended; and WHEREAS, the City, Allegiance and DB Denton have agreed to the terms and conditions upon which the City will create the District and public improvements within the District may be financed; and WHEREAS, the City, Allegiance and DB Denton have negotiated a Memorandum of Understanding (the "MOU ") to memorialize the agreement between the City, Allegiance and DB Denton on the terms and conditions for the creation of the District and for the financing of public improvements within the District; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City (the "Council ") hereby approves the attached form of MOU and authorizes the City Manager or Assistant City Manager and Chief Financial Officer, for and on behalf of the City and the Council, to execute and deliver the MOU with such other changes the officer executing the MOU determines to be necessary in connection therewith. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the Ovh"' day of May, 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Ax- (Memorandum of Understanding) MEMORANDUM OF UNDERSTANDING REGARDING TERMS AND CONDITIONS FOR THE I kAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO. 1 THIS MEMORANDUM OF UNDERSTANDING REGARDING TERMS AND CONDITIONS FOR THE RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO. 1, dated as of May 1, 2014 (this "MOU'), is entered into by and between CITY OF DENTON, TEXAS, a home rule municipality and a political subdivision of the State of Texas (the "City"), Allegiance Hillview, L.P., a New York limited partnership ("Allegiance"), and D13 Denton 11, LLC, a Delaware limited liability company ("DB Denton "). The City, Allegiance and D13 Denton being sometimes collectively referred to as the "Parties" or individually as a "Party." WHEREAS, the public improvement district to be known as Rayzor Ranch Public Improvement District No. I (the "District") is to be located within the corporate limits of the City; and WHEREAS, the City, Allegiance and DB Denton have agreed to the terms and conditions upon which the City will create the District and public improvements within the District may be financed; NOW, THEREFORE, for and in consideration of these premises, the City, Allegiance and DB Denton agree to this MOU as follows: This MOU has been developed in order to memorialize the agreement between the City, Allegiance and DB Denton on the terms and conditions for the creation of the District and for the financing of public improvements within the District. OR The District will be created and public improvements within the District may be financed in accordance with the terms and conditions set forth in Attachment A to this MOU. (a) The Parties acknowledge and agree that this MOU is fully enforceable in accordance with its terms. If any provision of this MOU shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any Constitution, statute, rule of public policy, or any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions of this MOU invalid, inoperative or unenforceable to any extent whatsoever, and this MOU shall be interpreted, to the greatest extent legally permissible, to effect the original intent of the Parties. (b) This MOU shall expire and be of no further force and effect upon the execution of a Financing Agreement with respect to the District between the City, Allegiance and DB Denton. (c) This MOU may be amended only by a written instrument duly executed by the Parties or their respective successors or assigns. (d) The captions of the sections of this MOU are for convenience only and shall not be deemed part of this MOU or considered in construing this MOU. This MOU, together with the attachments attached hereto, contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all other prior agreements, understandings, statements, representations and negotiations between the Parties with respect to its subject matter. This MOU is made solely for the benefit of the City, Allegiance and DB Denton, and their successors or assigns, and no other person shall acquire or have any right hereunder or by virtue hereof; provided, however, that successors and assigns of DB Denton and/or Allegiance, for purposes of this MOU, shall include only those parties which have demonstrated to the City's satisfaction that the party has the financial, technical and managerial capacity, experience and expertise to perform any obligations or duties assigned or necessary to develop the public improvements in the District. This MOU may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, the Parties have executed this MOU by their duly authorized representatives to be effective as of date first set forthabove. City of Denton, Texas By:", L. Name: Title: Aa/z Allegiance Hillview, L.P., a New York limited partnership By: TH GP LLC, a Delaware limited liability company, d/b/a TH Denton GP LLC in the State of Texas, its general partner By- Name: Title: DB Denton I KI,C, a Delaware limited liability company By:_ 6 Name: Title: . .. ... ...... S-1 IN WITNESS WHEREOF, the Parties have executed this MOU by their duly authorized representatives to be effective as of date first set forth above. City of Denton, Texas By: Name: Title: Allegiance Hillview, L.P., a New York limited partnership By: TH GP LLC, a Delaware limited liability company, d/b/a TH Denton GP LLC in the State of Texas, its general partner - --------- By: Name: n Title: Authorized Signatory DB Denton 11, LLC, a Delaware limited liability company By: ___ Name: Title: S-1 (Term Sheet) TERM SHEET RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT In order to form the Rayzor Ranch Public Improvement District No. 1 ("the PID"), the following limitations and performance standards shall apply: The aggregate principal amount of bonds required to be issued shall not exceed an amount sufficient to fund: (i) the actual costs of the qualified public improvements (ii) required reserves and capitalized interest during the period of construction and not more than 12 months after the completion of construction and in no event for a period greater than 2 years from the date of the initial delivery of the bonds and (iii) any costs of issuance. Provided, however that to the extent the law(s) which limit the period of capitalized interest to 12 months after completion of construction change, the foregoing limitation may be adjusted to reflect the law(s) in effect at the time of future Bond issuances. Appraisals shall be performed by an independent third party satisfactory to the City and shall assume development of the property will only include completion of the Authorized Improvements financed with PID Bonds and/or any other financial assurance as required according to the terms herein. 1. The specific Financing Criteria above includes potential financing activity associated with those land parcels within Rayzor Ranch Town Center and the approximately 100 acres currently owned by RED Development, LLC or its affiliates and identified on Exhibit A as Assessment Area #1. FINANCING CRITERIA 1. Maximum Total Indebtedness — PID 1 $ 40,000,000 subject to the limitation that the estimated equivalent tax rate of the assessments upon completion of the development does not exceed $0.50 per $100 of assessed value. 2. Estimated Total Qualified Development Costs $ 32,000,000 PID 3. Maximum Total Indebtedness — Assessment $ 12,000,000 Area #I 4. Maximum annual assessment rate as $0.50 per $100 of assessed value equivalent tax rate upon completion of develolinient — Assessment Area #1 5. Maximum Construction Costs to be Funded — $ 8,100,000 Assessment Area #1 6. Minimum appraised value to lien ratio at date 3:1 of each bond issue 7. Maximum years of capitalized interest for each 2 bond issue . . ...... . ..... 8. . .. . .... Maximum term of each bond issue (to extent 30 years allowed by law) The aggregate principal amount of bonds required to be issued shall not exceed an amount sufficient to fund: (i) the actual costs of the qualified public improvements (ii) required reserves and capitalized interest during the period of construction and not more than 12 months after the completion of construction and in no event for a period greater than 2 years from the date of the initial delivery of the bonds and (iii) any costs of issuance. Provided, however that to the extent the law(s) which limit the period of capitalized interest to 12 months after completion of construction change, the foregoing limitation may be adjusted to reflect the law(s) in effect at the time of future Bond issuances. Appraisals shall be performed by an independent third party satisfactory to the City and shall assume development of the property will only include completion of the Authorized Improvements financed with PID Bonds and/or any other financial assurance as required according to the terms herein. 1. The specific Financing Criteria above includes potential financing activity associated with those land parcels within Rayzor Ranch Town Center and the approximately 100 acres currently owned by RED Development, LLC or its affiliates and identified on Exhibit A as Assessment Area #1. 2. The land owned by Allegiance 8illview, or its affiliates, within the PlD is not included in the above stated Financing Criteria but Allegiance Bi hviovv and/or its uffiliairo retain the right to submit Financing Criteria miuilurtothe above for Future Assessment Areas as shown ooExhibit A. 3. The proposed PID does not include land located north of University Avenue or any land intended for development ao detached single family residential. 4. The City of Denton (the "City") agrees that PlD Bonds, subject to compliance with the standards set forth herein, may be issued in advance of construction for the Authorized Tmnrnveoueo1u within Assessment Area #l. 5. fUBC) l]svclnpmnput, or its assignees, may seek bond imouou aitbcc in advance of construction of and/or on n reimbursement basis for an individual Phase of the Project uo6|out to ooupliuuon with these standards. No PID bonds will be issued without the approval by the City of a Service and Assessment Plan for the Specific Assessment Area within the District. 6. No General Obligation orCodifiootenf Obligation bonds will bo utilized by the City to fund the PII}m. 7. DE[) Ilevo/op0000t, Allegiuocuflillvion/. their assignees and the City agree that all P80 bond issues, if any, will be subject to approval bythe City Council but that the tecouy outlined born will apply. 8. Special uoaomurueoto on any given portion of the property may be u6Hooted in 0000totiou with subsequent bond iuuuom as long as the maximum 0000ul assessment rate is not exceeded, and the mysuio} uooemxcuen1n are determined in ocoondmoue with applicable Service and Amoeuoouoot 9lou(y). Special assessments on any portion of the property will bear a direct proportionate relationship to, and will not exceed, the special beucfitnf the public improvements to that improvement area. 4. The City shall not be obligated to provide funds for any improvement except from the proceeds of the PID Bonds and/or per the terms of the 3 80 Agreement, as may be amended from time to time. 10. Each PD] Bond Indenture will contain language precluding the City from making any debt service payments for the PID Bonds other than from available special assessment revenues. ll. The PDO will be responsible for payment ofall of the City's reasonable and oustnouncy costs and expenses associated with both the issuance of bonds and the ongoing administration nfthe POD. 12. It is agreed that the PlD will be exempt from any public bidding or other purchasing and procurement policies 1nthe extent the project qualifies under Texas l.noal Government Code Section 252.022(a) (9) which states that u project iosxoozptfrnrououhpnlioicuif^^nuviugdcuiougo,utroetnideoiug,nudothec p ubliu iozpnnvecouotm, or related matters, if at least one-third of the cost is to be paid by or through special asaoaanuoota levied oo property that will benefit from the imprnvecuoo1m.^` l3. The City will not approve any PI[} Bonds for Assessment Area 4l unless at least 50Y6of the proposed Gross Leasable Area has been pre-leased or under contract to be sold to retail nyocutoxu. 14. It is agreed that the improvements to be funded by the PD0 for Amueuomucot Area #I or any nd6ec parcels located within the PD0 are limited tothose defined as Authorized Improvements under Texas I.nuu[ GoYuzuoueo1 Code Section 372.003 ("Authorized Improvements"), and will be dedicated to the City: m Streets and • Public safety and security services; • Woiuc vvau*ewmtcr, health and sanitation, and drainage facilities • Acquisition of rights of way; • Art; • Creation of pedestrian malb; • Erection offountains, landscaping and other aesthetics; • Library facilities; • Mass transit; • Pozk, recreation and cultural facilities; nud' • Parking facilities. 2 15. The City retains the right to approve the use of future PID Bonds for construction costs of Authorized Improvements for Future Assessment Areas or for additional assessments within Assessment Area #1. 16. RED Development, or its assignees, shall be obligated to provide funds, in a cash escrow/trust agreement, or an irrevocable letter of credit (Financial Assurance), to pay projected construction shortfalls, if any, for improvements to be financed with PID Bonds. Such funds or irrevocable letter of credit shall be deposited with the trustee for the PID Bonds at closing. RED Development shall also be obligated to pay any cost overruns for such improvements, if the cost of such improvements exceeds the amount of the PID Bonds and Financial Assurance deposited with the trustee for payment of such costs. 17. It is agreed that, if no PID Bonds are issued within a period of five (5) years from the date of the formation of the PID by the Denton City Council, RED Development, or its assignees, will be required to submit a petition to dissolve the PID. 18. It is agreed that all principal landowners will provide any required continuing disclosure obligations associated with the issuance of PID Bonds as required under the Indenture, any continuing disclosure agreement, or any other regulatory agreement or regulatory agency. 19. In connection with the issuance of the initial PID Bonds on behalf of Assessment Area 91, RED Development, or its assignees, agrees to guarantee the funding of the City's costs associated with the formation of the PID and the issuance of the initial PID Bonds through a mutually negotiated Escrow and Deposit Agreement and to be paid back by the PID Bond proceeds. 20. This term sheet shall remain in place until such time and date that a Financing Agreement is executed by the City, RED Development, Allegiance Hillview and/or their assignees. 21. Assignees of RED Development and/or Allegiance Hillview, for purposes of this Term Sheet, shall include only those parties which have demonstrated to the City's satisfaction that the party has the financial, technical and managerial capacity, experience and expertise to perform any obligations or duties assigned or necessary to develop the Authorized Improvements of the PID. 0 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A REIMBURSEMENT AGREEMENT FOR RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO.1 DATED BETWEEN THE CITY OF DENTON, ALLEGIANCE HILLVIEW, L.P., AND DB DENTON II, LLC; AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Allegiance Hillview, L.P. and DB Denton II, LLC ( "Developers ") petitioned for the creation of Rayzor Ranch Public Improvement District No. 1 covering 231.693 contiguous acres within the City of Denton, Texas ( "PID ") on March 25, 2014, which PID was thereafter established by City Council in Resolution No. R2014 -022, dated May 13, 2014; and WHEREAS, the City is authorized to reimburse certain eligible costs of improvements in the PID that are dedicated, conveyed, leased, or otherwise provided to or for the benefit of the City pursuant to Tex. Loc. Gov't Code Sec. 372.023, and WHEREAS, the City and Developers desire to enter into a Reimbursement Agreement for the Rayzor Ranch Public Improvement District No. 1 that is in substantially the form of the Reimbursement Agreement which is attached as Exhibit A and made a part of this Ordinance for all purposes (the "Agreement "); and WHEREAS, the Developers shall prepare and submit to the City for review a service and assessment plan required by Tex. Loc. Gov't Code, Sec. 372.013 and 372.014 to apportion to the Property the final costs to design and construct improvements to the PID area, which shall cause special benefits to accrue to the property within the PID, and Developers shall comply with all other requirements of the Agreement and local, State, and Federal law; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute the Reimbursement Agreement for the Rayzor Ranch Public Improvement District No. 1, substantially in the form as Exhibit A attached hereto. SECTION 2. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties as set forth in the Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the I" Day of March 2016. CHRIS WATTS, MAYOR 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY ro-13 APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY: i nnifer W. OeCpi-tis, Deputy City Attorney _ N i 1 RAYZOR RANCH PUBLIC IMPROVEMENT DISTRICT NO. 1 REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (this "Agreement ") is executed by the City of Denton, Texas (the "C "), Allegiance Hillview, L.P., ( "Allegiance "), and DB Denton II, LLC, ( "DB Denton ") to be effective _, 2016 (the "Effective Date ") 1. RECITALS. 1_1 WHEREAS, Allegiance is a New York limited partnership whose principle place of business is in Irving, Texas; and 1_2 WHEREAS, DB Denton is a Delaware limited liability company whose principle place of business is in Phoenix, Arizona; and 1_3 WHEREAS, the City is a Texas home -rule municipality; and 1_4 WHEREAS, the City, Allegiance, and DB Denton are sometimes individually referred to as a "Party" and collectively as the "Parties "; and 1_5 WHEREAS, Allegiance and DB Denton are sometimes referred to, collectively, as the "Developer "; and 1_6 WHEREAS, the RECITALS in this Section: (1) are true and correct; (2) are incorporated as part of this Agreement for all purposes; (3) evidence the intent of the Parties in entering into this Agreement; and (4) shall be used in interpreting this Agreement; and 1_7 WHEREAS, terms used in this Agreement that have their initial letters capitalized shall have the meanings given to them in Section 2 unless a term is otherwise defined or unless the context in which a term is used clearly requires a different meaning; and 1_8 WHEREAS, except as otherwise provided, all references to an "Ordinance" or "Resolution" shall refer to an ordinance or resolution adopted by the City Council; all references to "Section" shall refer to a section of this Agreement; and all references to "Exhibit" shall refer to an exhibit attached to and made a part of this Agreement for all purposes; and 1915.013 \53432.1 1_9 WHEREAS, on March 25, 2014, Allegiance and DB Denton submitted to the City Secretary of the City a petition (the "Petition ") requesting the creation of Rayzor Ranch Public Improvement District No. 1 (the "District ") covering approximately 231.693 contiguous acres within the corporate limits of the City (the " Property"); and 1.10 WHEREAS, the Parties entered into a Memorandum of Understanding Regarding Terms and Conditions for the Rayzor Ranch Public Improvement District No. 1 dated as of May 1, 2014 (the "MOU ") setting forth the agreement between the Parties on the terms and conditions for the creation of the District and for the financing of public improvements within the District; and 1.11 WHEREAS, pursuant to the Petition, and after notices were mailed and published as required by the Act, and after a public hearing was conducted as required by the Act, on May 13, 2014, the City Council approved and adopted Resolution No. R2014 -022 (the "District Resolution ") establishing the District covering the Property, which Property is described on Exhibit A to the District Resolution and depicted on Exhibit B to the District Resolution; and 1.12 WHEREAS, notice of the District Resolution was published in the Denton Record Chronicle as required by the Act; and 1.13 WHEREAS, the Property will be developed in phases; and 1.14 WHEREAS, the District Resolution provides that the public improvements generally described on ExhibitA (the "Authorized Public Improvements ") are authorized by the Act to be undertaken and financed through the District; and 1.15 WHEREAS, the Authorized Public Improvements must confer a special benefit on the Property and a direct benefit on the City; and 1.16 WHEREAS, the District Resolution estimates the cost of the Authorized Public Improvements for the District to be $40,000,000.00; and 1.17 WHEREAS, DB Denton and Dunaway Associates, L.P. entered into that certain RED Professional Services Agreement dated August 5, 2013, for the design of, and other professional services related to: (1) Heritage Trail Boulevard as a secondary arterial 4 -lane divided street from U.S. Highway 380 (University Drive) to Linden Street, a distance of Page 2 1915.013 \53432.3 approximately 2,400 feet; and (2) a water main loop from U.S. Highway 380 (University Drive) at the north end connection along Heritage Trail and future Panhandle Street to Bonnie Brae Street at the east end connection (the foregoing public street and public water improvements are depicted on Exhibit B and are collectively referred to as the "Phase 1 Heritage Trail Improvements "; and the design services for such public improvements are collectively referred to as the "Phase 1 Heritage Trail Design Services "); and 1.18 WHEREAS, the estimated cost of the Phase 1 Heritage Trail Design Services is shown on Exhibit C; and 1.19 WHEREAS, DB Denton and Strategic Construction, Ltd. entered into that certain AIA Document A101 -2007, Standard Form of Agreement Between Owner and Contractor, dated April 17, 2015, to construct the Phase 1 Heritage Trail Improvements described as Heritage Trail & Infrastructure (Roadway Phase 1) (the "Phase 1 Heritage Trail Construction Contract "); and 1.20 WHEREAS, as of the Effective Date, work is proceeding under the Phase 1 Heritage Trail Construction Contract; and 1.21 WHEREAS, the estimated cost of the Phase 1 Heritage Trail Construction Contract, when the work is completed, is shown on Exhibit D; and 1.22 WHEREAS, RED Development, as manager of DB Denton, and Olsson Associates entered into that certain RED Professional Services Agreement dated April 23, 2014, for the design of, and other professional services related to, water, sewer, and storm water public utilities (the foregoing public utilities are depicted on Exhibit E and are collectively referred to as the "Phase 1 Public Utilities "; and the design services for such public utilities are collectively referred to as the "Phase 1 Public Utilities Design Services "); and 1.23 WHEREAS, the estimated cost of the Phase 1 Public Utilities Design Services is shown on Exhibit F; and 1.24 WHEREAS, DB Denton and Ratcliff Constructors, LP entered into that certain AIA Document A101 -2007, Standard Form of Agreement Between Owner and Contractor, dated Page 3 1915.013 \53432.3 July 6, 2015, to construct the Phase 1 Public Utilities described as Phase I and Lot 4 Retail Building (the "Phase 1 Public Utilities Construction Contract "); and 1.25 WHEREAS, as of the Effective Date, work is proceeding under the Phase 1 Public Utilities Construction Contract; and 1.26 WHEREAS, the estimated cost of the Phase 1 Public Utilities Construction Contract, when the work is completed, is shown on Exhibit G; and 1.27 WHEREAS, the Phase 1 Heritage Trail Improvements and the Phase 1 Public Utilities are collectively referred to as the " Rayzor Ranch Phase 1 PID Improvements;" and 1.28 WHEREAS, as of the Effective Date, none of the Rayzor Ranch Phase 1 PID Improvements has been dedicated to the City; and 1.29 WHEREAS, upon completion, and prior to the dedication to and acceptance by the City, of the Rayzor Ranch Phase 1 PID Improvements, the City shall have the right to review and approve the final cost paid or incurred by the Developer to design and construct such improvements; and 1.30 WHEREAS, the Developer will prepare and submit to the City for review a service and assessment plan required by the Act that will apportion to the Property the final cost to design and construct the Rayzor Ranch Phase 1 PID Improvements, which apportionment shall be based on the special benefit conferred on the Property by such improvements (the "Phase 1 SAP "); and 1.31 WHEREAS, based on the Phase 1 SAP as approved by the City, the City intends to levy by ordinance in accordance with the Act special assessments against the Property to reimburse DB Denton for all or a portion (as set forth in the Phase 1 SAP approved by the City) of the final cost to the Developer to design and construct the Rayzor Ranch Phase 1 PID Improvements as approved by the City; and 1.32 WHEREAS, pursuant to Section 372.023(d) of the Act, costs payable from a special assessment that is payable in installments may be paid by any combination of the following methods: (1) under an installment sales contract or a reimbursement agreement between Page 4 191--).013\53432.3 the municipality and the person who constructs the improvements; or (2) by the issuance and sale of revenue bonds by the City pursuant to Section 372.024 and 372.025 of the Act; and 1.33 WHEREAS, this Agreement is a "reimbursement agreement" within the meaning of Section 372.023(d) of the Act. NOW THEREFORE, in consideration for the covenants of the Parties set forth in this Agreement, and for other good and valuable consideration the receipt and adequacy of which the Parties acknowledge, the Parties agree as follows: 2. DEFINITIONS 2_1 "Act" means Chapter 372, Texas Local Government Code, as amended. 2_2 "Agreement" is defined in the introductory paragraph. 2_3 "Allegiance" is defined in the introductory paragraph. 2.4 "Assessment Ordinance" is defined in Section 3.5. 2_5 "Authorized Public Improvements" are defined in Section 1.14. 2_6 "City" is defined in the introductory paragraph. 2_7 "City Council" means the City Council of the City. 2_8 "DB Denton" is defined in the introductory paragraph. 2_9 "Developer" is defined in Section 1.5. 2.10 "District" is defined in Section 1.9. 2.11 "District Resolution" is defined in Section 1.11. 2.12 "District Revenue Fund" is defined in Section 3.6. 2.13 "Economic Development Agreement" means the Economic Development Program Grant Agreement dated as of June 15, 2010 between Allegiance and the City, as amended and supplemented by the First Amendment to Economic Development Program Grant Agreement dated as of September 14, 2010 between Allegiance, DB Denton and the City, the Page 5 1915.013 \53432.3 Second Amendment to Economic Development Program Grant Agreement dated as of May 13, 2014 between Allegiance, DB Denton and the City (the "Second Amendment to Economic Development Agreement "), and the Third Amendment to Economic Development Program Grant Agreement dated as of November 10, 2015 between Allegiance, DB Denton and the City, and as may be further amended and supplemented from time to time in accordance with its terms. 2.14 "Effective Date" is defined in the introductory paragraph. 2.15 "Exhibit" is defined in Section 1.8. 2.16 "Final Phase 1 Heritage Trail Cost" is defined in Section 3.2.1. 2.17 "Final Phase 1 Public Utilities Cost" is defined in Section 3.2.2. 2.18 "Final Rayzor Ranch Phase 1 Cost" is defined in Section 3.2. 2.19 "Interest" is defined in Section 3.9. 2.20 "Landowner Agreement" is defined in Section 3.12. 2.21 "Maturity Date" is defined in Section 3.10. 2.22 "MOU" is defined in Section 1.10. 2.23 "Ordinance" is defined in Section 1.8. 2.24 "Par " and "Parties" are defined in Section 1.4. 2.25 "Petition" is defined in Section 1.9. 2.26 "PID Bonds" are defined in Section 3.7. 2.27 "Phase 1 Heritage Trail Construction Contract" is defined in Section 1.19. 2.28 "Phase 1 Heritage Trail Design Services" are defined in Section 1.17. 2.29 "Phase 1 Heritage Trail Improvements" are defined in Section 1.17. 2.30 "Phase 1 Public Utilities" are defined in Section 1.22. 2.31 "Phase 1 Public Utilities Construction Contract" is defined in Section 1.24. 2.32 "Phase 1 Public Utilities Design Services" are defined in Section 1.22. Page 6 1915.013 \53432.3 2.33 "Phase 1 SAP" is defined in Section 1.30. 2.34 "Property" is defined in Section 1.9. 2.35 "Rayzor Ranch Phase 1 PID Improvements" are defined in Section 1.27. 2.36 "Reimbursement Amount" is defined in Section 3.3. 2.37 "Resolution" is defined in Section 1.8. 2.38 "Second Amendment to Economic Development Agreement" is defined in Section 2.13. 2.39 "Section" is defined in Section 1.8. 2.10 "Special Assessments" are defined in Section 3.5. 3. AGREEMENTS OF THE PARTIES 3.1 Authorized Public Improvements. The Rayzor Ranch Phase 1 PID Improvements are Authorized Public Improvements. 3.2 Final Rayzor Ranch Phase 1 Cost. The "Final Rayzor Ranch Phase 1 Cost" is the sum of the Final Phase 1 Heritage Trail Cost and Final Phase 1 Public Utilities Cost determined as follows: 3.2.1 Final Phase 1 Heritage Trail Cost. Upon completion of the Phase 1 Heritage Trail Improvements, and prior to the dedication to and acceptance by the City of such improvements, the Developer shall submit to the City a detailed accounting of the final costs paid or incurred to design and construct the Phase 1 Heritage Trail Improvements. The City shall review the Developer's design and construction costs and provide the Developer with a letter, signed by the City Manager or his designee, notifying the Developer that items or amounts on the accounting are approved or denied or requesting additional detail if needed to perform the review. The amount of costs to design and construct the Phase 1 Heritage Trail Improvements approved by the City is referred to as the "Final Phase 1 Heritage Trail Cost." 3.2.2 Final Phase 1 Public Utilities Cost. Upon completion of the Phase 1 Public Utilities, and prior to the dedication to and acceptance by the City of such utilities, the Page 7 1915.013 \53432.3 Developer shall submit to the City a detailed accounting of the final costs paid or incurred to design and construct the Phase 1 Public Utilities. The City shall review the Developer's design and construction costs and provide the Developer with a letter, signed by the City Manager or his designee, notifying the Developer that items or amounts on the accounting are approved or denied or requesting additional detail if needed to perform the review. The amount of costs to design and construct the Public Utilities approved by the City shall be referred to as the "Final Phase 1 Public Utilities Cost." 3.3 Dedication of Improvements. When the Final Rayzor Ranch Phase 1 Cost has been approved by City staff and all Rayzor Ranch Phase 1 PID Improvements have been inspected and approved by the City, the Developer shall dedicate the Rayzor Ranch Phase 1 PID Improvements to the City or to or for the benefit of the public, as directed by the City, and the City shall accept such dedication. City acceptance shall be evidenced by written confirmation of the assumption of ownership or control of the Rayzor Ranch Phase 1 PID Improvements by the City. Such dedication shall be in accordance with all applicable requirements of the City including, but not limited to, requirements for as -built drawings, lien releases, payment and performance bonds, contractor warranties, and, if applicable, easements or licenses in favor of the City or the public. Upon such dedication, the City agrees to reimburse DB Denton for all or a portion (as set forth in the Phase 1 SAP approved by the City) of the Final Rayzor Ranch Phase 1 Cost solely in accordance with and subject to the terms of this Agreement and state law. The amount of the Final Rayzor Ranch Phase 1 Cost to be reimbursed to the Developer shall be payable solely to DB Denton and shall not exceed the aggregate amount of the Special Assessments initially levied by the City pursuant to Section 3.S, but in any event shall not exceed '$32,000,000 (the "Reimbursement Amount "). The Developer will have no right to reimbursement under this Agreement of the amount of the Final Rayzor Ranch Phase 1 Cost in excess of the Reimbursement Amount. The Developer acknowledges and agrees that while the Rayzor Ranch Phase 1 PID Improvements may be "Eligible Improvements" under the Economic Development Agreement, pursuant to Section 3(4) of the District Resolution, the amount of the Final Rayzor Ranch Phase 1 Cost equal to the Reimbursement Amount does not qualify as an "Eligible Phase II Cost" under the Economic Development Agreement and such amount is not eligible for grant payments or Page 8 1915.013 \53432.3 reimbursement under the Economic Development Agreement. Any amount of the Final Rayzor Ranch Phase 1 Cost in excess of the Reimbursement Amount may be qualified by the Developer as an "Eligible Phase II Cost" under the Economic Development Agreement and such excess amount is eligible for grant payments or reimbursement under the Economic Development Agreement. 3.4 Phase 1 SAP. After the dedication of all Rayzor Ranch Phase 1 PID Improvements in accordance with Section 3.3, the Developer shall prepare and submit to the City for review a Phase 1 SAP that complies with the Act and with the terms and conditions in the MOU (or any financing agreement executed by the Parties replacing the MOU), and that apportions to the Property or portions thereof the Final Rayzor Ranch Phase 1 Cost based on the special benefit conferred on the Property or portions thereof by the Rayzor Ranch Phase 1 PID Improvements. The Phase 1 SAP shall contain, among other provisions, the assessment methodology that will apportion the Final Rayzor Ranch Phase 1 Cost based on special benefit conferred. The Phase 1 SAP shall also contain an assessment roll for the Property or portions thereof. The Phase 1 SAP shall be approved by the Developer. 3.5 Assessment Ordinance; Special Assessments. Based on the assessment methodology set forth in the Phase 1 SAP as approved by the City, the City intends to adopt an ordinance (the "Assessment Ordinance ") that levies against the Property or portions thereof special assessments (the "Special Assessments ") to reimburse DB Denton for the Reimbursement Amount with interest to accrue on the Special Assessments at a rate sufficient to pay the Interest on the Reimbursement Amount or, if PID Bonds are issued, interest on the PID Bonds. Special Assessments shall be based on the special benefit conferred on the Property or portions thereof by the Rayzor Ranch Phase 1 PID Improvements. Special Assessments may be paid in full at any time without penalty, and if not paid in full, shall be paid in installments as set forth in the Phase 1 SAP and Assessment Ordinance. The Reimbursement Amount represents the total costs to be assessed against the Property for the Rayzor Ranch Phase 1 PID Improvements. The City will not levy the Special Assessments until such time as all Landowner Agreements required under Section 3.12 have been executed and delivered to the City. Page 9 1915.013 \53432.3 3.6 District Revenue Fund. The City shall use reasonable efforts to collect or cause to be collected payments of Special Assessments and annual installments of Special Assessments in accordance with the Phase 1 SAP and Assessment Ordinance. The City shall not be required under any circumstances to expend any funds for costs to collect payments and annual installments of Special Assessments other than funds on deposit in the District Revenue Fund. All such payments shall be deposited into a District fund created by the City that is segregated from all other funds of the City (the segregated fund, including accounts created by the City in the fund that the City determines to be necessary, are collectively referred to as the "District Revenue Fund "). The District Revenue Fund shall only be used as follows: FIRST, to reimburse or reserve therein for the City the costs paid or incurred or expected to be paid or incurred by the City to administer and operate the District, including, without limitation, costs to collect Special Assessments and attorney's fees; and SECOND, to reimburse DB Denton for the Reimbursement Amount plus Interest either from the District Revenue Fund or from the net proceeds of PID Bonds. The creation of the District Revenue Fund, the deposit of Special Assessments and annual installments of Special Assessments into the District Revenue Fund, and the payment to DB Denton of the Reimbursement Amount plus Interest in accordance with this Agreement are ministerial and administrative functions that are performable by City staff without City Council approval. 3.7 PID Bonds. After all Rayzor Ranch Phase 1 PID Improvements have been dedicated in accordance with Section 3.3, and when requested by DB Denton, the City will consider issuing and selling revenue bonds payable from and secured solely by the District Revenue Fund and not by any other revenues, taxes, income, funds or property of the City (the "PID Bonds ") subject to the terms and conditions in the MOU or any financing agreement executed by the Parties replacing the MOU. If PID Bonds are issued and sold, the net proceeds shall be used solely to reimburse DB Denton for the Reimbursement Amount, net of the amount of the Reimbursement Amount, if any, previously reimbursed to DB Denton from the District Revenue Fund. Unless otherwise approved by DB Denton and the City, the net proceeds from the issuance and sale of PID Bonds shall fully reimburse DB Denton for the then - outstanding balance of the Reimbursement Amount. The City will not issue and sell PID Bonds until such time as all Landowner Agreements required under Section 3.12 have been executed and Page 10 1915.013 \53432.3 delivered to the City. The failure of the City to issue and sell PID Bonds shall not affect the continuing obligation of the City to reimburse DB Denton for the Reimbursement Amount plus Interest from the District Revenue Fund. 3.8 Governmental Functions. The approval of the Phase 1 SAP, the adoption of the Assessment Ordinance, the levy of Special Assessments, and the issuance and sale of PID Bonds are governmental functions within the sole discretion of the City Council. The inability or failure by the City to approve the Phase 1 SAP, to adopt the Assessment Ordinance, to levy Special Assessments, or to issue and sell PID Bonds shall not under any circumstances constitute a failure to perform an obligation of, or a default by, the City under this Agreement. 3.9 Interest. The Reimbursement Amount shall bear simple interest per annum at the rate of 6.25% for years one through five, with year one beginning on the Effective Date, and [5.83]% for years six to the Maturity Date or until PID Bonds are sold, if ever ( "Interest "). If any portion of the Reimbursement Amount remains unpaid after the City issues and sells PID Bonds, the per annum rate of Interest shall be the per annum true interest rate on the PID Bonds; provided, however, that such rate shall not exceed [8.83]% for years one through five, with year one beginning on the Effective Date, and [5.83]% for years six to the Maturity Date. Interest shall begin accruing on the date the Special Assessments are effective. The Interest rate has been approved by the City Council and is authorized by the Act and was determined based upon the Bond Buyer Revenue Bond Index published in The Bond Buyer, a daily publication that publishes this interest rate index, and on the date of the determination, the highest average index rate was [3.83]% for the month prior to the Effective Date. The rates of Interest contained in this Section comply with Section 372.023(e)(1) and 372.023(e)(2) of the Act. 3.10 Payment of Reimbursement Amount. The City agrees to pay to DB Denton the Reimbursement Amount plus Interest on the unpaid balance in accordance with the terms of this Agreement until the date which is 30 years from the date the Special Assessments are initially levied by the City (the "Maturity Date "). The Reimbursement Amount plus Interest shall be payable to the Developer solely as described in Section 3.6. Until PID Bonds are issued, if ever, the balance in the District Revenue Fund shall be paid to DB Denton annually Page 11 1915.013 \53432.3 beginning on the first June 30111 to occur after the first installment of the Special Assessments is due and payable and continuing on each June 301h thereafter until the earlier of the Maturity Date or the date the Reimbursement Amount and accrued Interest have been paid in full. No other City funds, revenue, taxes, income, or property shall be used even if the Reimbursement Amount or Interest are not paid in full as of the Maturity Date. Notwithstanding its collection efforts, if the City fails to receive all or any part of the Special Assessments and, as a result, is unable to make payments from the District Revenue Fund to DB Denton as required under this Agreement, such failure and inability shall not constitute a failure to perform an obligation of, or default by, the City under this Agreement. This Agreement shall not and shall never give rise to or create: (1) a charge against the general credit or taxing powers of the City or any other taxing unit; or (2) a debt or other obligation of the City payable from any source of revenue, taxes, income, or properties of the City other than from the District Revenue Fund or the net proceeds of PID Bonds; or (3) any obligation of the City to issue PID Bonds or other obligations; or (4) any obligation of the City to pay any amount due or to become due under this Reimbursement Agreement to pay the Reimbursement Amount plus Interest other than from the District Revenue Fund and from the net proceeds of PID Bonds. 3.11 Unpaid Balance on Maturity Date. If on the Maturity Date, after application of the net proceeds of PID Bonds plus the annual payments to DB Denton from the District Revenue Fund pursuant to Section 3.6, any portion of the Reimbursement Amount or accrued Interest remains unpaid, such unpaid amounts shall be canceled and for all purposes of this Agreement shall be deemed to have been conclusively and irrevocably PAID IN FULL, and such unpaid Reimbursement Amount and Interest shall no longer be deemed to be payable; provided, however, if any installments of Special Assessments remain due and payable and are uncollected on the Maturity Date, such installments, when, as, and if collected after the Maturity Date, shall first be applied to any amounts due in connection with outstanding PID Bonds and then paid to DB Denton and applied to the unpaid Reimbursement Amount and Interest. Page 12 1915.013 \53432.3 3.12 Approval of Special Assessments Through Landowner Agreement. Concurrently with the levy of the Special Assessments for any portion of the Property, each owner of property that is or will be subject to Special Assessments shall execute a landowner agreement ( "Landowner Agreement ") in which the owners shall approve and accept the apportionment of assessments in the Phase 1 SAP and the levy of the Special Assessments by the City. The Landowner Agreement further shall (a) evidence the owner's intent that the Special Assessments be covenants running with the land that (i) will bind any and all current and successor owners of the Property to the Special Assessments, including applicable interest thereon, as and when due and payable thereunder and (ii) provide that subsequent purchasers of such land take their title subject to and expressly assume the Special Assessments subject to the terms and conditions of the Phase 1 SAP and the Assessment Ordinance; and (b) provide that the liens created by the levy of the Special Assessments are a first and prior lien on the Property, subject only to liens for ad valorem taxes of the State (if any) or any municipality including the City, school district, special district or other political subdivision. The Landowner Agreements shall be recorded in the Real Property Records of Denton County, Texas. 4. ADDITIONAL PROVISIONS 4.1 Representation and Warranties. 4.1.1 The City is a home -rule, Texas municipal corporation with the power and authority to enter into and perform its obligations under this Agreement. 4.1.2 The City knows of no litigation, proceedings, initiative, referendum, investigation or threat contesting the powers of the City to perform its obligations under this Agreement. 4.1.3 The City knows of no law, order, rule or regulation applicable to the City that would be contravened by or conflict with the performance by the City of its obligations under this Agreement. 4.1.4 This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency Page 13 1915.013 \53432.3 and other laws of general application affecting creditors' rights and by equitable principles, whether at law or in equity. 4.1.5 Allegiance is a New York limited partnership duly organized and validly existing under the laws of the State of Texas, is qualified to do business in the State of Texas, and has the legal capacity and authority to enter into and perform its obligations under this Agreement. 4.1.6 The execution and delivery of this Agreement by Allegiance, and the performance and observance by Allegiance of its terms, conditions and obligations, have been duly authorized. 4.1.7 Allegiance knows of no litigation proceeding, initiative, referendum, investigation or threat contesting the powers of the Allegiance to perform its obligations under this Agreement. 4.1.8 Allegiance has the necessary legal ability to perform its obligations under this Agreement. This Agreement constitutes a valid and binding obligation of Allegiance, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether at law or in equity. 4.1.9 DB Denton is a Delaware limited liability company duly organized and validly existing under the laws of the State of Texas, is qualified to do business in the State of Texas, and has the legal capacity and authority to enter into and perform its obligations under this Agreement. 4.1.10 The execution and delivery of this Agreement by DB Denton, and the performance and observance by DB Denton of its terms, conditions and obligations, have been duly authorized. 4.1.11 DB Denton knows of no litigation proceeding, initiative, referendum, investigation or threat contesting the powers of DB Denton to perform its obligations under this Agreement. Page 14 1915.013 \53432.3 4.1.12 DB Denton has the necessary legal ability to perform its obligations under this Agreement. This Agreement constitutes a valid and binding obligation of DB Denton, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether at law or in equity. 4.2 Performance: Venue. This Agreement shall be performed in Denton County, Texas, and shall be construed according to the laws of the State of Texas, and all disputes arising under this Agreement shall be litigated in a District Court in Denton, County, Texas. 4.3 Default: Remedies. 4.3.1 If a Party fails to perform any obligation imposed on or required of the Party by this Agreement, and if such non - performing Party does not cure the failure within 30 days after notice of the non - performance is given by any other Party (unless the nature of the unperformed obligation is such that the non - performance cannot reasonably be cured within 30 days, in which case the non - performing Party shall be deemed to have cured the non- performance if a cure is materially initiated within such 30 -day period and thereafter diligently pursued to completion without interruption or delay), then such non - performing Party shall be in default under this Agreement. 4.3.2 If the City is in default under this Agreement, the sole and exclusive remedy of Allegiance or DB Denton shall be to file suit seeking specific performance of this Agreement by the City. Remedies shall not include the recovery of damages from the City. 4.3.3 If Allegiance or DB Denton is in default under this Agreement, the sole and exclusive remedy of the City shall be to file suit seeking specific performance of this Agreement by Allegiance or DB Denton. 4.3.4 If any Party is in default under this Agreement, the non - defaulting Parties waive any claims of consequential or other monetary damages. 4.3.5 If any Party is in default under this Agreement, the non - defaulting Parties waive the right to terminate this Agreement. Page 15 1915.013 \534323 Nothing in this Agreement is intended to constitute a waiver by the City of any remedy the City may otherwise have outside this Agreement against any person or entity involved in the design, construction, or installation of the Rayzor Ranch Phase 1 PID Improvements. 4.4 Notices. Any notice required or contemplated by this Agreement to be given to a Party shall be in writing and shall be deemed given at the addresses shown below each Party's signature: (1) five business days after depositing the notice with the United States Postal Service, CERTIFIED MAIL RETURN RECEIPT REQUESTED, postage prepaid; (2) when delivered by a nationally recognized delivery service (e.g., FedEx or UPS) with evidence of delivery to the notice address whether or not delivered to the person to whom the notice is directed; or (3) when actually received by the Party to whom the notice is addressed, whether delivered to the Party in person or sent to the Party by FAX or E -mail. Any Party may change its address by delivering written notice of such change in accordance with this section. 4.5 Assignment. 4.5.1 Allegiance. Allegiance has the right (without the consent of, but with prior written notice to, the City) to assign, in whole or in part, its duties, obligations, and rights under this Agreement to any affiliate of Allegiance (i.e., to any person or entity that is controlled by Allegiance, that is under common control with Allegiance, or that controls Allegiance). Allegiance also has the right to assign, in whole or in part, its duties, obligations, and rights under this Agreement to any other person or entity with the written consent of the City. The rights of Allegiance to assignment are conditioned upon the assignee agreeing, in writing, to assume the duties, obligations, and rights being assigned and to be bound by the terms and conditions of this Agreement to the extent they apply to the duties, obligations, or rights being assigned. An assignment by Allegiance pursuant to this Section shall be effective upon delivery to the City of a copy of the fully executed assignment, which shall include the information required by Section 4.4 and unambiguous provisions regarding any apportionment between Allegiance and the assignee of the right to receive any payments under this Agreement, and from and after the effective date of any assignment, Allegiance Page 16 1915.013 \53432.3 shall be released from performing or benefiting from the duties, obligations, and rights assigned. 4.5.2 DB Denton. DB Denton has the right (without the consent of, but with prior written notice to, the City) to assign, in whole or in part, its duties, obligations, and rights under this Agreement to any affiliate of DB Denton (i.e., to any person or entity that is controlled by DB Denton, that is under common control with DB Denton, or that controls DB Denton). DB Denton also has the right to assign, in whole or in part, its duties, obligations, and rights under this Agreement to any other person or entity with the written consent of the City; provided that, if the Special Assessments are payable in annual installments, DB Denton shall have the right to assign, in whole or in part, its rights to receive payment of the Reimbursement Amount and Interest, and any duties and obligations related thereto, without the consent of, but with prior written notice to, the City. The rights of DB Denton to assignment are conditioned upon the assignee agreeing, in writing, to assume the duties, obligations, and rights being assigned and to be bound by the terms and conditions of this Agreement to the extent they apply to the duties, obligations, or rights being assigned. An assignment by DB Denton pursuant to this Section shall be effective upon delivery to the City of a copy of the fully executed assignment, which shall include the information required by Section 4.4 and unambiguous provisions regarding any apportionment between DB Denton and the assignee of the right to receive payment of the Reimbursement Amount and Interest or any other payment, and from and after the effective date of any assignment, DB Denton shall be released from performing or benefiting from the duties, obligations, and rights assigned. 4.5.3 Cam. The City does not have the right to assign, in whole or in part, its duties, obligations, or rights under this Agreement. 4.5.4 City Reliance. The City may rely on any notice of an assignment or executed assignment received from a Developer without obligation to investigate or confirm the validity or occurrence of such assignment. The Developer waives all rights or claims against the City for any such funds provided to a third party as a result of an assignment for which Page 17 1915.013 \53432.3 the City has received notice, and the Developer's sole remedy shall be to seek the funds directly from the third party. If the City determines in its sole discretion that the executed assignment received from a Developer does not unambiguously provide for the apportionment between the Developer and the assignee of the right to receive payments of the Reimbursement Amount or Interest or any other amount, the City will make such payments solely to that Developer until such time as the executed assignment is amended to unambiguously provide for such apportionment and the assignee or other third party's sole remedy shall be to seek the funds directly from the Developer. 4.6 Unenforceability. If any provision of this Agreement is held by a court to be unenforceable for any reason, this Agreement shall nevertheless remain in effect, and the Parties shall interpret the remaining provisions to achieve their intent in entering into this Agreement. 4.7 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one agreement. 4.8 Waiver of Immunity. 4.8.1 The obligations of the City under this Agreement are non - recourse. The City expressly does not waive or surrender its governmental powers, immunities, defenses, and rights with respect to any action brought against the City by any Party to this Agreement, except to the extent permitted by law and necessary to allow the Developer to enforce its remedies under this Agreement, limited to Section 4.3 of this Agreement to pursue only specific performance through declaratory judgment after an opportunity to cure as described herein. Nothing in this Agreement shall be construed as creating or giving rise to any rights in any third parties or any persons other than the Parties hereto. Nothing in this Agreement is intended to delegate or impair the performance by the City of its governmental functions. 4.8.2 The City does not waive or surrender any of its governmental powers, immunities, defenses, limitations, or rights with respect to any action brought against the City for any Page 18 1915.013 \53432.3 type of damages whatsoever, whether general or special, economic, or noneconomic, or exemplary, as well as attorney's fees. 4.8.3 The City does not waive or surrender any of its governmental powers, immunities, defenses, limitations, or rights with respect to any action brought against the City alleging a negligent or intentional tort by the City. 4.9 Amendments. This Agreement may be amended, modified, revised, or changed only by written instrument executed by the Parties. 4.10 Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to or shall be construed to confer upon or to give to any person or entity other than the City and the Developer any rights, remedies, or claims under or by reason of this Agreement, and all covenants, conditions, promises, and agreements in this Agreement shall be for the sole and exclusive benefit of the City and the Developer. 4.11 No Individual Liability. None of the City's elected or appointed officials or any of its officers or employees shall incur any liability hereunder to the Developer or any other party in their individual capacities by reason of this Agreement or their acts or omissions under this Agreement. 4.12 Second Amendment to Economic Development Agreement. The City and DB Denton each acknowledge that Special Assessments paid by DB Denton (and its permitted successors or assigns under the Economic Development Agreement) are public improvement district assessments contemplated by, and subject to, Section 9 of the Second Amendment to Economic Development Agreement. 4.13 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the earlier to occur of the Maturity Date or the date on which DB Denton has been paid the Reimbursement Amount plus accrued Interest, whether from the District Revenue Fund or from the net proceeds of PID Bonds. Additionally, this Agreement shall terminate on May 13, 2019 if the City has not levied the Special Assessments by such date. Page 19 1915.013 \53432.3 THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Page 20 1915.013 \53432.3 List of Exhibits Exhibit A Authorized Public Improvements Exhibit B Depiction of Phase 1 Heritage Trail Improvements Exhibit C Estimated Cost of Phase 1 Heritage Trail Design Services Exhibit D Estimated Cost of Phase 1 Heritage Trail Construction Contract Exhibit E Depiction of Phase 1 Public Utilities Exhibit F Estimated Cost of Phase 1 Public Utilities Design Services Exhibit G Estimated Cost of Phase 1 Public Utilities Construction Contract Page 21 1915.013 \53432.3 Allegiance Hillview, L.P., a New York limited partnership By: TH GP LLC, a Delaware limited liability company, its general partner By: Name: Title: Address: Attn: Phone: FAX: Email: Page 22 1915.013 \53432.3 DB Denton II, LLC, a Delaware limited liability company By: Name: Title: Address: Attn: Phone: FAX: Email: Page 23 1915.013 \53432.3 City of Denton, Texas, a Texas Home -Rule Municipality By: Name: Title: Address: Attn: Phone: FAX: Email: Page 24 1915.013 \53432.3 Exhibit A Authorized Public Improvements a. Arterial, collector, and local street improvements including, but not limited to, grading, drainage channels and structures, storm drains, retention basins, paving, curb, gutter, sidewalks, medians, landscaping, street lights, traffic signals, sewer lines, utility lines and appurtenances, irrigation lines and facilities, signing and striping, dust control and erosion protection, any necessary transitions, tapers and temporary improvements to existing roadways and facilities, and other associated improvements; and b. Interstate Highway I -35 frontage roads and associated entry /exit ramp reversal improvements including, but not limited to, grading, drainage channels and structures, storm drains, retention basins, paving, curb, gutter, sidewalks, medians, landscaping, street lights, traffic signals, sewer lines, utility lines and appurtenances, irrigation lines and facilities, signing and striping, dust control and erosion protection, any necessary transitions, tapers and temporary improvements to existing roadways and facilities, and other associated improvements; and C. Sanitary sewer line improvements from the main collector and arterial roadways through the Property to serve individual lots and pad sites; and d. Water line improvements from the main collector and arterial roadways through the Property to serve individual lots and pad sites; and e. Storm water improvements. Page 25 1915.013 \53432.3 Depiction of Phase 1 Heritage Trail Improvements PUBLIC ROADWAY PUBLIC WATER PUBLIC STORM - - - -- - - - PROJECTNO: 013 -3111 EXHIBIT B, DEPICTION S0021m,+6:hso- + EXHIBIT DRAWN BY: SS OF THE HERITAGE TRAIL �+ S sPL 6' 0 W L4I TLS �2.746. +��a� 1 OF 2 DATE: 1.4.16 IMPROVEMENTS ASSOCIATES Fhx 662.746.IWI Page 26 1915.013 \53432.3 Exhibit C Estimated Cost of Phase 1 Heritage Trail Design Services ITEM ESTIMATED COST Civil Design Contract- Dunaway Base Contract $285,500 Construction Administration 6000 Platting 5000 Reim burseables 4000 TOTAL $301,500 City Permit & Inspection Fees irrigation Water Meter Impact Fee Materials Testing and Inspection estimate 20,000 Survey 1-19106 Total $ 413,967 Page 27 1915.013\53432.3 Exhibit D Estimated Cost of Phase 1 Heritage Trail Construction Contract ITEM Heritage Trail Phase I Base Contract Change Order 0 1- Fire Hydrant Change Order tt 2 Storm Sewer Change Order # 3 Grade Change Change Order It 4 Grade Change (N/A to PID) Change Order# 5 Gas Line Allownace Credit Change Order It 6 Irrigation pUmp Change Order # 7 Canes Fire Hydrant (N/A to PID) Change Order It 8 Water main valves -estimate Estimated Cost 2,985,565,00 8,154,00 $ 7,52100 8,781.10 $ (200,owm) 12,CO9.80 16,025.00 Total $ 2,838,057,90 Page 28 1915.013\53432.3 W W Q� V e-i ctS a 0 0 v a� Q N bA cu C1. M N M V M M M O h Exhibit F Estimated Cost of Phase 1 Public Utilities Design Services [EN ESTIMATED COST Civil Design Contract- OLSSON Base Contract $222,000 Construction Administration 20,000 Easements (estimate) 10,000 Platting (estimate) 5000 Reimburseables (estimate) 15,000 TOTAL $272,000 $272,000.00 City Inspection Fees $51,816.12 Irrigation Water Meter Impact Fee $19,500 Sewer Tap Fee $8,250 Materials Testing and Inspection estimate 25,000 Survey (estimate) 8000 Total Page 30 $ 384,566.12 1915.013 \53432.3 Exhibit G Estimated Cost of Phase 1 Public Utilities Construction Contract ITEM I ESTIMATED COST Ratcliff Construction Contract Breakdown Public Water Main ( $233,362.00 Public Sanitary Sewer 1 $208,375.00 Public Storm Sewer ( $1,004,043.00 Utility Mobilization & Layout 1 $7,607.00 Transformer Pads 1 $25,000.00 SUBTOTAL 1 $1,478,387.00 Prorata General Conditions, OH &P (9.212 %) 1 $136,189.00 Page 31 1915.013 \53432.3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -349, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services CM/ ACM: Jon Fortune Date: March 1, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas ( "City "), as buyer and BCI Real Estate Ventures, L.P. (the "Owner "), as seller, to acquire fee simple to a 1.509 acre tract located in the Moreau Forrest Survey, Abstract Number 417, in the City of Denton, Denton County, Texas; (the "Property Interests ") for the purchase price of Two Hundred Twenty Three Thousand Eight Hundred Seven Dollars and No Cents ($223,807.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefor; (II) providing a savings clause; and (III) providing an effective date. ( Mayhill Road Widening and Improvements project - Parcel M088 -BCI Real Estate Ventures, LP) BACKGROUND An Offer to Purchase the land rights necessary for the road widening project was made to the affected property owner in June of 2015. A Final Offer to Purchase was made in early August 2015. Prior to the latest offer(s) to purchase, there has been ongoing discourse with the affected property owner. A main topic of discussion involved a prior offer to purchase in which the appraisal for that offer considered a larger, "master" parent tract. That master parent tract (then 39.764 acres) was subdivided between the time the first appraisal was prepared and the time the first offer to purchase was made to the property owner. Upon review of this discovery, an update to the appraisal was arranged to consider the facts at hand, a now 8.71 acre gross remainder tract being affected by the subject land rights purchase request. In September 2015, staff requested City Council to authorize acquisition of the Property Interests by eminent domain, should negotiations reach an outright impasse. That authorization was granted via Ordinance 2015 -299. Ongoing negotiations with the affected property owner for the subject land rights necessary for the Mayhill Road Widening and Improvements project have continued, with optimism between the parties that a settlement could be reached in advance of any formal legal proceedings. The captioned purchase amount represents a proposed settlement of the matter, subject to City Council approval. Approval of the subject ordinance authorizes staff to proceed with closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -349, Version: 1 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Staff recommends approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Road construction slated to begin Summer 2016. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council - Ordinance No. 2015 -299 eminent domain authorization- September 15, 2015 FISCAL INFORMATION The overall Mayhill Road Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds. The overall costs for the subject Property Interests are to be funded through a combination of these funding sources. 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: 2.2 Seek solutions to mobility demands and enhance connectivity EXHIBITS Exhibit 1- Location Map Exhibit 2- Site Map Exhibit 3- Ordinance Respectfully submitted: Frank G. Payne, P.E. City Engineer Prepared by: Paul Williamson Real Estate Manager City of Denton Page 2 of 2 Printed on 2/26/2016 Site Map Parcel M088 Approximately 1.5 Acres N BCI Real Estate Ventures, LP Tract W E crry 80 40 0 80 160 240 S ' Feet l T��E NT N Exhibit 2 to the CC AIS 4dea4 & t 5 A 4.np V 4: ndnpt Exhibit 3 attachment to CC AIS ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE AGREEMENT, BY AND BETWEEN THE CITY OF DENTON, TEXAS, ( "CITY "), AS BUYER AND BCI REAL ESTATE VENTURES, L.P., (THE "OWNER "), AS SELLER, TO ACQUIRE FEE SIMPLE TO A 1.509 ACRE TRACT LOCATED IN THE MOREAU FORREST SURVEY, ABSTRACT NUMBER 417, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; (THE "PROPERTY INTERESTS ") FOR THE PURCHASE PRICE OF TWO HUNDRED TWENTY THREE THOUSAND EIGHT HUNDRED SEVEN DOLLARS AND NO CENTS ($223,807.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED TO THE ORDINANCE AND MADE A PART THEREOF AS EXHIBIT "A ", (I) AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; (II) PROVIDING A SAVINGS CLAUSE; AND (III) PROVIDING AN EFFECTIVE DATE. ( Mayhill Road Widening and Improvements project — Parcel M088 —BCI Real Estate Ventures, LP) WHEREAS, the City of Denton, Texas (the "City ") has initiated the widening and expansion of Mayhill Road affecting, among other lands and interests, the Property Interests; and WHEREAS, the widening and expansion of Mayhill Road constitutes a valid public use of the City and its citizens; and WHEREAS, the City made a written Initial Offer to Owner of the Property Interests on June 15, 2015; and WHEREAS, the City made a written Final Offer to Owner of the Property Interests on August 7, 2015; and WHEREAS, Owner has made a counteroffer to the City's offers; WHEREAS, City is amenable to the counteroffer, and finds that it is in the best interest to agree to same; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Purchase Agreement, by and between the City and Owner, substantially in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $223,807.00 and other consideration, plus costs and expenses, all as prescribed in the Purchase Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Purchase Agreement; and (b) to make expenditures in accordance with the terms of the Purchase Agreement. SECTION 2. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or 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 By: I z a EXHIBIT "A" attachment to Ordinance PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. THIS PURCHASE AGREEMENT (the "Agreement ") is dated , 2016, but effective as of the date provided below, between BCI REAL ESTATE VENTURES, L.P., a Texas limited partnership (referred to collectively herein as "Owner" or "Seller ") and the City of Denton, Texas ( "City" or "Buyer "). WITNESSETH: WHEREAS, BCI REAL ESTATE VENTURES, L.P., a Texas limited partnership is the Owner of a tract of land (the "Land ") in the Morreau Forrest Survey, Abstract Number 417, Denton County, Texas in the City of Denton, Denton County, Texas, being affected by the Mayhill Road Widening and Improvements Project ( "Mayhill Project) referred to herein as the "Project "); WHEREAS, City is in need of certain fee simple lands, being a part of the Land, related to the Project; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Project; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City a Special Warranty Deed (herein so called) conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Special Warranty Deed, and other interests as prescribed therein (the "Fee Lands "), the Special Warranty Deed being attached hereto as Attachment 1 and made a part hereof. The Special Warranty Deed shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1 ". B. Owner, subject to the limitation of such reservation made herein, shall reserve, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, their heirs, devisees, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). PJ As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. As consideration for the granting and conveying of the Property to the City, the City shall pay to Owner at Closing the sum of Two Hundred Twenty Three Thousand Eight Hundred Seven and No /100 Dollars ($223,807.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Fee Lands free and clear of all debts, liens and other encumbrances (the "Encumbrances "). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Fee Lands, if necessary in the discretion of the City, but at no cost to the Owner. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the transactions contemplated by this Agreement. 5. The Closing (herein so called) shall occur in and through the office of Reunion Title, 207 South Denton Tap Road, 4300, Coppell, Texas, 75019 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 60 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 3 6. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which the Closing shall occur shall be prorated and submitted by Seller to the Denton County Tax Assessor as of the Closing Date. Ad valorem tax for the calendar year in which the Closing shall occur shall be tendered under Texas Property Tax Code Section 26.11. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year. Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. If the conveyance contemplated by this Agreement or the use of the Fee Lands by the City after the Closing results in the assessment of additional taxes, penalties or interest (the "Rollback Assessments ") for periods prior to closing, Owner shall not be responsible for the Rollback Assessments. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 7. The date on which this Agreement is executed by the City shall be the "Effective Date" of this Agreement. 8.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. :l 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands, or upon the Owner with respect to the Fee Lands, after the date of Closing. 11. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: OWNER: BCI REAL ESTATE VENTURES, L.P., a Texas limited partnership 525 S. Carroll Blvd., 4100 Denton, Texas, 76205 Phone: 940 -566 -0033 Telecopy: 940 -566 -9300 Copies to: For Owner: Irwin Law Firm 207 S. Denton Tap Road, 4100 Coppell, Texas, 75019 Barry D. Irwin Telecopy: 972 - 633 -3251 CITY: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For City: Larry Collister, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 12. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 13. Owner represents and warrants to the City that (i) it has taken all actions necessary to authorize the party executing this Agreement for and on behalf of Owner to bind, in all respects, Owner to all terms and provisions hereof; and (ii) this Agreement is binding and enforceable, in all respects, against the Owner. 14. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deed. 15. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands, City may, at its election, terminate this Agreement at any time prior to Closing. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER Date: 2016 ATTEST: JENNIFER WALTERS, CITY SECRETARY Date: 2016 11 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Date: .2016 OWNER: BCI REAL ESTATE VENTURES, L.P., A Texas limited partnership By: BCI REAL ESTATE VENTURES GP, LLC, a Texas limited liability company, its general partner By: Barry D. Irwin, Manager Date: 12016 By: Craig C. Irwin, Manager Date: 12016 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Reunion Title 207 S. Denton Tap Road, Suite 300 Denton, Texas 75019 Telephone: (972) 462 -8725 Telecopy: (972) 393 -1658 Printed Name: Title: Contract receipt date: 12016 E3 ATTACHMENT I TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That BCI REAL ESTATE VENTURES, L.P., a Texas limited partnership (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to Page 2 of 4 claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED this the day of 12016. OWNER: BCI REAL ESTATE VENTURES, L.P., A Texas limited partnership By: BCI REAL ESTATE VENTURES GP, LLC, a Texas limited liability company, its general partner By: By: Barry D. Irwin, Manager Craig C. Irwin, Manager ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2016, by Barry D. Irwin, as a Manager, BCI Real Estate Ventures GP, LLC, a Texas limited liability company, acting in its capacity as the general partner for BCI Real Estate Ventures, L.P., a Texas limited partnership, on behalf of said entities. Notary Public, State of Texas Printed Name of Notary My commission expires: Page 3 of 4 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2016, by Craig C. Irwin, as a Manager, BCI Real Estate Ventures GP, LLC, a Texas limited liability company, acting in its capacity as the general partner for BCI Real Estate Ventures, L.P., a Texas limited partnership, on behalf of said entities. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Notary Public, State of Texas Printed Name of Notary My commission expires: Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 Page 4 of 4 BEING all that certain lot, tract or parcel of land situated in the Moreau Forrest Survey, Abstract Number 417, City of Denton, Denton County, Texas, and being, part of that certain tract of land described by deed to BC1 Real Estate Ventures, L.P., recorded. under instrument Number 2005-91580, Official Public Records, Denton County, Texas, and being more particularly described as follows; )BEGINNING at a "PK" Nail set for the northwest comer of said BCI tract in the south right-of-way line of FM 426, same point being in Mayhill Road; Z� THENCE South 75 degrees 23 minutes 18 seconds East, with the north line of said BCI tract and the south right-of- way line of FM 426, a distance of 161,85 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for comer; THE, NCE South 54 degrees 36 minutes 56 seconds West, over and across said BCI tract, a distance of 35.68 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non-tangent curve to the right, having Z7 a radius of 2079.00 feet; THENCE over and across said BC1 tract, with said curve to the right, through a central angle of 00 degrees 52 "I j 11.1� minutes 40 seconds, whose chord bears South 04 degrees 10 minutes 49 seconds West at 31.86 feet, an arc length of 31.86 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 04 degrees 37 minutes 09 seconds West, over and across said BCI tract, a distance of 231.65 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 269.00 feet; THENCE over and across said BC1 tract, with said curve to the right, through a central angle of 12 degrees 34 minutes 41 seconds, whose chord bears South 10 degrees 54 minutes 30 seconds West at 58.93 feet, an arc length of 59.05 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a reverse curve to the left, having a radius of 231.00 feet; THENCE over and across said BCl tract, with. said curve to the left, through a central angle of 12 degrees 34 rainutes 41 seconds, whose chord bears South 10 degrees 54 minutes 41 seconds West at 50.61 feet, an arc length of 50.71 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 04 degrees 37 minutes 09 seconds West, over and across said BCI tract, a distance of 141.25 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer in the south line of said BC1 tract and the north ,line of a (Tact of land described by deed to the City of Denton, recorded under County Clerk's File Nurnber 97- 1.9639, Real Property Records, Denton County, Texas; (continued) 01107131-47 Parcel M088 THENCE North 88 degrees 15 ininutes 47 seconds West, with the south line of said BCl tract and the north line of said City of Denton tract, a distance of 99.98 feet to a "PK" Nail set in Mayhill Road for the southwest comer of said BCl tract and the northwest corner of said City of Denton tract; THENCE North 02 degrees 33 ininutes 47 seconds East, with the west line of said BCl tract and with Mayhill Road, a distance of 570.05 feet to the POINT OF BEGINNING and containing 1.509 acres of land, of which 0.659 acre lie within existing,, Mayhill Road, 01107131-47 Parcel M088 100 0 50 100 6-1—i SCALE I"= 100' Bearings shown hereon based an the City of Denton GIS Network. NOTES: • LRY. = 1/2" Iron Rod Found • I.R.S. =1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Blanket Easements recorded in Vol. 199, Pg. 612, Vol. 410, Pg, 169, Vol. 460, Pg. 89, Vol. 475, Pg. 691., Vol. 544, P& 660 &Vol. 545, Pg. 31 include this tract. • Easements recorded in Vol. 472, Pg. 263 Vol. 485, Pg 224, Vol. 695, Pg. 35, Vol. 909, Pg. 381, Vol. 914, Pg. 522, Vol. 1128, Pgs. 982 & 988, Vol. 1438, Pg. 676 & Vol. 2896, Pg. 158 do not affect subject tract to the best of my knowledge. -pit 4,26 . . . . . . . . . . loll I it, q l 1 14 �i iq 11 14- p > r17 I I I I EXHIBI I B Mayhill Road Project Parcel M088 1.509 Acres Moreau Forrest Survey -4,bstract Number 417 City • Denton Denton County, Texas (C.M.) 911 1. R. S. I i C2 J.R.S. C3 23CI Real Estate Ventures, LP T=tr. NO. 2005-91580 (remainder) New Right-of-way 0.850 ac. (37,014 sq. ft.) Existinglinplied Dedication 0.659 ac. (28,718 sq. ft.) 1.509 Acres (65,732 sq. ft.) Right-of-Way Parcel M088 City of Denton `1 C.Cqur97-19639 CURVE TABLE 1� �-44�4 4, ---- - ------- SURVEYORS CERTIFICATION: 0 0 The undersigned does hereby certify to Title Resources (GZ No. 102537 & 102540) & The City ofDcnton, that this survey was this day made on the . .................. COJOLAS .. ground of the property legally described hereon and is correct; and to the best ofmyknowledge, them are Elmo no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachments, overlapping S �-44�4 4, 000' 0 F'" 4 SURVEYORS CERTIFICATION: 0 0 The undersigned does hereby certify to Title Resources (GZ No. 102537 & 102540) & The City ofDcnton, that this survey was this day made on the . .................. COJOLAS .. ground of the property legally described hereon and is correct; and to the best ofmyknowledge, them are .......... 6 no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachments, overlapping S ofimprowment5, casements or rights ofway that I have been advised of except as shown hereon. rthur Surveying Co., Inc. Aprofes "Urveyors P.O.Box 54 – Lewisville, Texas 75067 11fice: (972) 221-9439 Fax: (972) 221-4675 Established 1986 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 16 -362, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of January 4, 5, 12, 23, 26, and 28 -29, 2016. City of Denton Page 1 of 1 Printed on 2/26/2016 CITY OF DENTON CITY COUNCIL MINUTES January 4, 2016 After determining that a quorum was present, the City Council convened in a Work Session on Monday, January 4, 2016 at 11:30 a.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Johnson, Council Member Briggs, Mayor Pro Tem Gregory, Council Member Wazny and Mayor Watts ABSENT: Council Member Roden and Council Member Hawkins. Work Session Reports A. ID 16 -002 Receive a report and hold a discussion regarding an Aging Texas Well survey. Alison Ream, Administrative Services Manager, stated that the results of a needs assessment were going to be presented by Julia Wolfe with the North Texas Area Agency on Aging. She noted that the results had been delivered to Council in a prior communication. Ms. Wolfe stated that this was a needs assessment for residents over the age of 60. The point of her presentation was to think about the coordination of services and not necessarily services that had to be provided by the city of Denton. Information concerning the background of survey was presented. There were five focus groups which took the survey with 500 people responding. The top three concerns across all ages included the need for better communication about the available services, better coordination among services and increased transportation options that were more easily accessible. She reviewed the top housing needs, top transportation needs, health care concerns across all ages, recreational needs, recommendations of the committee, and next steps. Council discussed whether CDBG funds were available for retrofitting homes for aging in place. Moving forward the staff contact for the city would be Ms. Ream for short term and long term goals. A suggestion was made to review the Development Code for any conditions that might discourage development of elder friendly housing. B. ID 16 -001 Receive a report, hold a discussion and give staff direction on the existing Transmission Cost of Service (TCOS) recovery structure in the ERCOT region and its relation to DME's Capital Improvement Plan. Phil Williams, General Manager -DME, stated that the purpose of his presentation was to present information concerning transmission cost of services. He reviewed the history of DME, TCOS, the wholesale rate costs and total transmission costs. The challenges associated with the TCOS process were presented. Council discussed determining the costs per entity congestion in the lines. 2. Concluding Items City of Denton City Council Minutes January 4, 2016 Page 2 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 time for a presentation on the quarterly financial report, possible changes in the upcoming budget, and an update on performance measures. Mayor Watts requested an Informal Staff Report on contingencies on water needs in terms of an emergency. Mayor Watts questioned if there would be any cost to the city of Denton for repairs of the Lake Lewisville dam if needed. Mayor Watts requested a report on the growing need for water in the community. Mayor Watts suggested scheduling one or two town hall meetings to be able to respond to direct questions from citizens or information that could be given out on the Denton Renewable Plan before the actual public hearing. This could be a question/answer kind of environment. With no further business, the meeting was adjourn 12:50 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 5, 2016 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, January 5, 2016 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 January 5, 2016. City Manager Campbell stated that the Closed Session item on the leased property would be considered but the action item 4B on the property would not be considered. Item 4C dealing with a contingency fund issue now had a revised agreement that increased the amount. The revised agreement needed to be mentioned when making a motion. For Item 5C, the correct backup was sent out to Council yesterday. 3. Work Session Reports A. ID 16 -005 Receive a report, hold a discussion, and give staff direction regarding policies related to the Economic Development Investment Fund and the Downtown Reinvestment Grant Fund. Aimee Bissett, Director of Development Services, stated that this discussion would look at two separate economic development funds. She discussed the history of the two funds, policies for administering both funds, requested direction from Council on how to integrate policy direction into future discussion and an update in the spring of 2016 of the Incentive Policy. She noted that the two separate funds were intended to stimulate economic development and reviewed the authority to provide for economic development funds. Regarding the Economic Development Investment Fund, she presented information on the purpose, the fact that Denton was in competition with state -wide incentive programs, and examples of case studies of projects for incentive grants. The basics of Chapter 380 incentives and the Economic Development Strategic Acton Agenda were presented. Council discussed whether to leave the eligibility a little vague in order to define it as conditions changed such as a percentage over the median. The fund was meant to go above and beyond what a normal incentive package could be provided. Caroline Booth, Assistant Director of Economic Development, provided information on the Downtown Reinvestment Grant Program. The purpose of the grant was reviewed along with the history of the grant program. The staff recommendation was to continue the program with consideration of broadening the purpose. City of Denton City Council Minutes January 5, 2016 Page 2 Council discussed the reasons for a slow down for applications for the grant, how the Downtown Incentive Grant amount was determined, considered an expansion of the definition "downtown ", considered expanding the program throughout the City or combining the funds with another grant program and deciding what would be accomplished and then determine where to place the funds. Consensus of the Council was to hold another work session dealing with how to deal with the two funds, DTIP funding, etc. Staff could proceed to process the two applications that were already submitted. B. ID 16 -041 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. Phil Williams, General Manager -DME, presented an Executive Summary of Council directions /questions on the Renewable Denton Plan. His current presentation would include utility scale battery update, size of proposed quick start facilities, and community emissions impact. Reasons for the need for 220MW of Quick -Start Units were discussed. Council discussion included (1) Denton was not getting 100 MW of generation from Gibbons Creek so how could the calculations be made how much was needed, (2) whether the 220 MW of quick start was needed, (3) problems expressed with the timing and math for the plants, (4) ERCOT sales and how to differentiate whether it was for Denton or other usages, and (5) procedures on how ERCOT requested energy. Williams continued with information on 12 units versus 6 units of service in terms of cost, emissions reduction, 20 year savings, market risk, and options to replace Gibbons Creek. The 2019 projected emissions and gas usage reduction amounts were reviewed. Council follow -up discussion included storage capacity of southern California, full delivery capacity time, duration demand side management issues and what that would do for the City in terms of peak loads. In terms of the proposed location on the west side of the City, information was requested from the Airport staff or FAA regrading thermal pollution and problems with Airport operations. Other topics included an update on Austin's request for information for ancillary services for battery storage units, how to fund the plants in terms of the kinds of bonds, and the basis for the projections for cost of renewables increase in costs of the quick start. 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 16 -007 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 in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues City of Denton City Council Minutes January 5, 2016 Page 3 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. [ID 16 -008] B. ID 16 -044 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding real estate matters related to DME Hickory substation, located at the intersection of West Hickory and South Bonnie Brae in the City of Denton, Texas, and specifically concerning certain real property located at 1224 N. Bonnie Brae; 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 condemnation or acquisition of the real property interests where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Hickory Substation] [ID 16 -031] C. ID 16 -043 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests located along both the east and west sides of South Mayhill Road between Spencer Road to the north and Pockrus Page Road to the south; 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- Spencer / Mayhill Substation] [ID 16 -040] D. ID 16 -042 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. City of Denton City Council Minutes January 5, 2016 Page 4 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 16 -009 Irma P. Hall Day Mayor Watts presented the proclamation for Irma P. Hall Day. 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. C. Additional Citizen Reports I . Jennifer Lane spoke regarding the need for an independent analysis for the Renewable Denton Plan and not vote until the analysis was completed. 2. Zack Youngblood spoke on the report from Citigroup regarding battery storage. He felt that DME's plan was not open to anything new other than what they had proposed and that DME had not given the full report on the project proposal. 3. Debra Armintor spoke regarding residents living near the proposed gas plant near Shepherd who actually lived in Aubrey and not in Denton. 4. Jodi Ismert spoke regarding inconsistencies in some of the data that was presented in graphs from DME. The analysis was strictly cost benefit analysis and not emissions. The public was concerned with emissions. 4. CONSENT AGENDA Council Member Johnson motioned, Council Member Hawkins seconded to approve the Consent Agenda and accompanying ordinance and resolutions with the exception of Item B and include the amended agreement for Item C. 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. Ordinance No. 2016 -001 A. ID 16 -004 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for fraud prevention, credit risk assessment, and debit recovery services for the City of Denton Customer Service department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5890- awarded to ONLINE Information Services, Inc., dba the ONLINE Utility Exchange, in the three City of Denton City Council Minutes January 5, 2016 Page 5 (3) year not -to- exceed amount of $250,000). The Public Utilities Board recommends approval (6 -0). B. ID 16 -008 Consider adoption of an ordinance of the City of Denton, Texas approving an Office Lease and Right of First Refusal between the City of Denton and 4SR Mulberry, LLC, and a Subordination, Non - Disturbance and Attornment Agreement between the City of Denton, 4SR Mulberry, LLC, and the National Bank of Texas at Fort Worth, all 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 agreements subject to final language approval by the City Attorney; and providing an effective date. This item was not considered. Ordinance No. 2016 -002 C. ID 16 -029 Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Denton African American Scholarship Foundation; providing for the expenditure of funds therefor; and providing for an effective date. Ordinance No. 2016 -003 D. ID 16 -030 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 replacement of the roof at the City of Denton Fleet Services building by way of an Interlocal Agreement with the City of Denton; and providing an effective date (File 6027- awarded to CBS Mechanical, Inc. in the amount of $445,810). Ordinance No. 2016 -004 E. ID 16 -031 Consider adoption of an ordinance ratifying the expenditure of funds by the City Manager for the emergency purchase and installation of electrical wiring, fixtures, appliances, drywall and associated repairs for the Denton Municipal Electric and Facilities Management project located at 1224 North Bonnie Brae Street, Denton, Texas 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 6023- awarded to Harvest Construction Team, Inc. in the amount of $58,175). Ordinance No. 2016 -005 F. ID 16 -032 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement for professional engineering and consulting services related to the City of Denton Municipal Solid Waste Landfill and Recycling Facilities; providing for the expenditure of funds therefor; and providing an effective date (File 6014- awarded to Parkhill Smith and Cooper in the annual amount of $150,000 for a three (3) year not - to- exceed amount of $450,000). The Public Utilities Board recommends approval (7- 0). City of Denton City Council Minutes January 5, 2016 Page 6 Ordinance No. 2016 -006 G. ID 16 -033 Consider adoption of an ordinance approving a "Third Amendment to Professional Services Agreement for Architect or Engineer" by and between the City of Denton, Texas and Malcolm Pirnie, Inc., now known as Arcadis US, Inc., to provide engineering services for the design of the Lake Lewisville Water Treatment Plant Rehabilitation and Process Upgrade; authorizing the expenditure of funds therefor; and providing an effective date (File 4399 - providing for an additional $146,823 for additional services on the project- aggregating to $3,850,233). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2016 -007 H. ID 16 -034 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of certified softball officiating services from the North Texas Umpires Association (NTUA), 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 6017- Agreement with NTUA in the amount per game as specified in the agreement in the estimated annual award of $85,000 for a three (3) year estimated expenditure of $255,000). Ordinance No. 2016 -008 L ID 16 -035 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility aluminum swage connectors to be stocked in the City of Denton Distribution Center; providing for the expenditure of funds therefor; and providing an effective date (RFP 5861- awarded to Irby Utilities in the three (3) year not -to- exceed amount of $660,000). 5. ITEMS FOR INDIVIDUAL CONSIDERATION - CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS Ordinance No. 2016 -009 A. ID 16 -026 Consider adoption of an ordinance of the City of Denton determining the public use, need, and necessity for the acquisition of fee simple title to the surface estate, including a waiver of surface use to the mineral estate, of a tract of land ( "Property Interests ") generally located in the 1200 block of North Interstate Highway 35 East and being a portion of Lot 1, Block 1, Royal Inn Addition, an addition to the City of Denton, Denton County, Texas according to the Plat recorded in Cabinet D, Page 329, Plat Records, Denton County, Texas, and more particularly described in the attached Exhibit "A "; authorizing the City Manager and City Attorney, or their respective designees, to acquire the property interests by agreement including making initial and final offers; authorizing the use of the power of eminent domain to condemn the property interests if an agreement cannot be reached; and authorizing the City Attorney, or her designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funding; makings findings; providing a savings clause; and providing an effective date. (Fire Station No. 3 Rebuild) City of Denton City Council Minutes January 5, 2016 Page 7 Paul Williamson, Real Estate and Capital Support Manager, presented the details of the proposal which would authorize staff to make offers and if necessary use eminent domain for the Fire Station 3 rebuild. He displayed the property description on the overhead screen as the motion was read. A Speaker Card was submitted by Willie Hudspeth, 623 Newton, Denton who spoke against the use of eminent domain. Council Member Hawkins motioned, "I move that the City of Denton, after having made the offers required by State law, authorize the use of the power of eminent domain to acquire fee simple to the surface estate, including waiver of surface use to the mineral estate, of a tract of land generally located in the 1200 block of north Interstate Highway 35 East and being a portion of Lot 1, Block 1, Royal Inn Addition, an addition to the City of Denton, Denton County, Texas according to the Plat recorded in Cabinet D, Page 329, Plat Records, Denton County, Texas, and more particularly described on "Exhibit A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, all of which is for a valid public use necessary to provide fire and emergency medical services to serve the public and the citizens of the City of Denton, Texas ". Mayor Pro Tem Gregory seconded the motion. 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. Ordinance No. 2016 -010 B. ID 16 -052 Consider adoption of an ordinance of the City of Denton, Texas determining the public use, need, and necessity for the acquisition of fee simple title to the surface estate, including a waiver of surface use to the mineral estate, of a 25.63 acre property tract ( "property interests ") described in the attached exhibit "a" generally located on the north side of Tom Cole Road and being west of and adjacent to City of Denton Enterprise Airport property and being situated in the Wm. Wilburn Survey, Abstract 1419, Denton County, Texas, and more particularly described in the attached Exhibit "A "; authorizing the City Manager and City Attorney, or their respective designees, to acquire the property interests by agreement including making initial and final offers; authorizing the use of the power of eminent domain to condemn the property interests if an agreement cannot be reached; and authorizing the City Attorney, or her designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funding; makings findings; providing a savings clause; and providing an effective date. (Denton Enterprise Airport: West Parallel Runway Project (Eagle Farms /Porter)) Paul Williamson, Real State and Capital Support Manager, presented the details of the proposal. He noted that a public use for the property was needed which necessitated offers to purchase and if necessary use eminent domain. He displayed the property details on the overhead projector as the motion was read. Mayor Pro Tem Gregory motioned, "I move that the City of Denton, after having made the offers required by State law, use of the power of eminent domain, if needed, to acquire fee simple to the City of Denton City Council Minutes January 5, 2016 Page 8 surface estate, including waiver of surface use to the mineral estate, of a 25.63 acre tract generally located on the north side of Tom Cole Road and being west of and adjacent to City of Denton Enterprise Airport property and being situated in the Wm. Wilburn Survey, Abstract 1419, Denton, Denton County, Texas, and more particularly described on "Exhibit A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, all of which is for a valid public use necessary to provide the expansion of aviation infrastructure and facilities to serve the public and the citizens of the City of Denton, Texas ". Council Member Hawkins seconded the motion. 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. Ordinance No. 2016 -011 C. ID 16 -053 Consider adoption of an ordinance of the City of Denton, Texas determining the public use, need, and necessity for the acquisition of fee simple title to the surface estate, including a waiver of surface use to the mineral estate, of a 29.444 acre tract ( "property interests ") described in the attached Exhibit "A ", generally located and adjacent to the southwest boundaries of the City Of Denton Enterprise Airport property and being situated in the J. McDonald Survey, Abstract 873, Denton County, Texas, and more particularly described in the attached Exhibit "A "; authorizing the City Manager and City Attorney, or their respective designees, to acquire the property interests by agreement including making initial and final offers; authorizing the use of the power of eminent domain to condemn the property interests if an agreement cannot be reached; and authorizing the City Attorney, or her designee, to file eminent domain proceedings if necessary; authorizing the expenditure of funding; makings findings; providing a savings clause; and providing an effective date. (Denton Enterprise Airport: West Parallel Runway Project (SLF II Cole Properties, LP) Paul Williamson, Real Estate and Capital Support Manager, presented the details of the proposal which authorized staff to make offers to purchase the property and if necessary use eminent domain. He displayed the property description on the overhead projector as the motion was read. Council Member Johnson motioned, "I move that the City of Denton, after having made the offers required by State law, use of the power of eminent domain, if needed, to acquire fee simple to the surface estate, including waiver of surface use to the mineral estate, of a 29.444 acre tract generally located and adjacent to the southwest boundaries of the City of Denton Enterprise Airport Property and being situated in the J. McDonald Survey, Abstract 873, Denton, Denton County, Texas, and more particularly described on "Exhibit A" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, all of which is for a valid public use necessary to provide the expansion of aviation infrastructure and facilities to serve the public and the citizens of the City of Denton, Texas ". Mayor Pro Tem Gregory seconded the motion. 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. City of Denton City Council Minutes January 5, 2016 Page 9 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 16 -051 Receive certification of a recall petition from the City Secretary and give staff direction. City Secretary Walters stated that a petition was submitted on December 14, 2015 by Ms. Elida Tamez, representing a Committee of Electors, for the recall of Council Member Hawkins. She indicated that she had reviewed the elements of the petition required by the City Charter, found the petition to be sufficient and was certifying that the petition was in compliance with the provisions of the City Charter. The Charter provided for a seven day period for Council Member Hawkins to resign after being notified of the sufficiency of the petition. That time period had passed with Council Member Hawkins not resigning. Per the Charter, Council was now required to order and fix a date for holding a recall election. An ordinance was scheduled for the February 2, 2016 City Council agenda for Council's consideration to order a recall election for Council Member Hawkins on May 7, 2016. City Attorney Burgess indicated that she and the City Secretary had confirmed with the Secretary of State's office that the election would have to be held on a uniform election date. The next uniform date was the May 7th election. Willie Hudspeth, 623 Newton, Denton, spoke on the recall petition certification. Council did not follow the will of the citizens regarding the fracking ordinance and the recall was a result of that vote. Council offered various comments regarding the recall, support for Council Member Hawkins and support for the process of recall. 7. PUBLIC HEARINGS Ordinance No. 2016 -012 A. ID 16 -010 Hold a public hearing and consider approval of the updates to the City of Denton's Mobility Plan and the Travel Demand Model of the Denton roadway system. The Mayor opened the public hearing. PS Arora, Wastewater Division Manager, presented the details of the update. He displayed the existing Mobility Plan and stated that it needed to be updated due to large developments which were not included in the current plan. He detailed the reasons for updating the Plan and stated that staff recommended approval. The following individuals spoke during the public hearing: Willie Hudspeth, 623 Newton, Denton - spoke in opposition Zac Youngblood, 836 Hawse Drive, Copper Canyon, 75022 - spoke against the plan. The Mayor closed the public hearing. City of Denton City Council Minutes January 5, 2016 Page 10 Council Member Hawkins motioned, Council Member Johnson seconded to adopt the ordinance. 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. Ordinance No. 2016 -013 B. S 15 -0011 a Hold a public hearing and consider a Specific Use Permit (SUP) to allow a Basic Utility, a Denton Municipal Electric substation, on approximately 6.2 acres within a Downtown Commercial General (DC -G) District. The subject property is generally located at the southwest corner of South Locust Street and West Collins Street, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommends approval, subject to conditions (6 -0). The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, stated that this public hearing dealt with a specific use permit for a basic utility substation for the DME Locust Substation which would replace the existing substation on Locust Street. She presented information on the site plan, considerations for approval, public notification and staff recommendation. Conditions included a masonry wall and an attached site plan. The Planning and Zoning Commission recommended approval. The following individuals spoke during the public hearing: Willie Hudspeth, 623 Newton, Denton - spoke regarding the height of the wall Zac Youngblood, 836 Hawse, Copper Canyon, 75077 - spoke against the masonry wall The Mayor closed the public hearing. Council Member Briggs noted that she was not part of the site selection. Council Member Hawkins motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance. On roll call vote, Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Mayor Pro Tem Gregory "aye ", Council Member Wazny "aye" and Council Member Briggs "nay ". Motion carried with a 5 -1 vote. Ordinance No. 2016 -014 C. S 15 -0012a Hold a public hearing and consider a Specific Use Permit (SUP) for Multi - Family Dwellings on two properties zoned Neighborhood Residential Mixed Use 12 (NRMU -12). The subj ect properties are approximately 0.24 and 0.33 acres in size and are located at 609 and 612 Meadow View Court, in the City of Denton, Denton County, Texas. The Planning and Zoning Commission recommended approval of this request, subject to conditions (6 -0). The Mayor opened the public hearing. City of Denton City Council Minutes January 5, 2016 Page 11 Aimee Bissett, Director of Development Services, stated that the proposed Specific Use Permit was for a multifamily project located at 609 and 612 Meadow View Court. She presented information on the current zoning, site photos, site plan, considerations for approval, and public notifications. Staff recommended approval with three conditions. The Planning and Zoning Commission recommended approval but recommended an additional condition for a privacy fence along the western property line of 612 Meadow View Court. The applicant was in agreement with the privacy fence with board on board construction. The following individual spoke during the public hearing: Zac Youngblood, 836 Hawse, Copper Canyon, 75077 — spoke in favor The Mayor closed the public hearing. Council Member Johnson motioned, Council Member Hawkins seconded to adopt the ordinance with the addition of an eight foot high privacy fence. On roll call vote, Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs it Mayor Pro Tem Gregory "aye ", and Council Member Wazny "aye ". Motion carried unanimously. Resolution No. R2016 -001 D. ID 16 -040 Hold a public hearing and consider adopting a resolution regarding the proposed sites for construction, expansion, and use of an electric power transmission /distribution substation located along both the east and west sides of South Mayhill Road between Spencer Road to the north and Pockrus Page Road to the south, in the City of Denton, Texas, as part of Denton Municipal Electric's service territory. [Mayhill substation/Pockrus to Mayhill] The Mayor opened the public hearing. Brent Heath, Executive Manager of Energy Delivery, presented information on the Mayhill Substation/Pockrus to Mayhill. He reviewed the background information on the project which addressed growth and the aging infrastructure of the transmission line. Details on the project included the substation constraints, options for location, options for the transmission lines, layout of the substation, and public involvement steps. Staff's recommendation was to move forward with the yellow route option and utilizing the city of Denton landfill site for the substation. The following individuals spoke during the public hearing: Willie Hudspeth, 623 Newton, Denton - spoke in favor of the process that was done for the proposal. Bill Vaughen, 401 Marshall Rd, Southlake, 76092 - speaking for Spencer family was opposed Marilyn Haggard, 5300 Whiting Way, Denton, 76208 - spoke in opposition Donna Sincere, Ocean View Drive, Denton — spoke in opposition The Mayor closed public hearing. City of Denton City Council Minutes January 5, 2016 Page 12 Council discussed the placement of the transmission lines, possible movement of the station further north, that the public notification system was lacking for citizens, possibly postponing until determining whether the more northern site would be viable and that the resolution would approve the yellow line route and the location of the substation. There was no decision on the dissecting line. Mayor Pro Tern Gregory motioned, Council Member Johnson seconded to approve the resolution with a strong recommendation to not use the diagonal line in the future. 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. 8. 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. A. ID 16 -060 Willie Hudspeth regarding City Hall. Willie Hudspeth spoke on the following topics, (1) eliminate the rule of frequent speakers at the end of the meeting, (2) Blacks not being allowed to be buried in IOOF cemetery, (3) important votes should not be taken during day meetings, and (4) sidewalks at Ryan and Guyer High Schools. 9. 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 staff report on the cemetery issue. Council Member Briggs suggested using different envelopes for official notifications. Council Member Briggs suggested using public art around the proposed new substations instead of brick walls. City of Denton City Council Minutes January 5, 2016 Page 13 Council Member Briggs suggested using a third party independent consultant to review the Renewable Plan. Mayor Pro Tem Gregory requested a staff report on the egress /ingress for the neighborhood directly east of UNT Discovery Park and a possible solution for those residents. Council Member Wazny was in agreement with the suggestion to hire an independent consultant to review the Renewable Denton Plan. Council Member Wazny requested a cost summary on the transmission line project, a projected budget and cost to date. Mayor Watts requested a Work Session regarding revisiting /rewriting the Denton Development Code and giving the Planning Director latitude to make decisions on codes that were outdated or items that could be done now prior to rewriting the Code. Mayor Watts stated that the Denton Air Show was short on their budget by $6000- $7,000 and requested options to help with that deficit. Mayor Watts requested a Work Session on City Hall West regarding the vision for it, funding for it and also revisit the Master Plan for City facilities. Mayor Watts requested information on possible traffic calming devices in the Wind River neighborhood. Mayor Watts requested information on what the utility rates would be if the City did not have TMPA debt, how that impacted utility rates or what it did to the DME budget. B. Possible Continuation of Closed Meeting topics, above posted. There was no continuation of the Closed Meeting. With no further business, the meeting was adjourned at 9:33 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 12, 2016 After determining that a quorum was present, the City Council convened in a Closed Meeting on Tuesday, January 12, 2016 at 2:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items were considered. PRESENT: Council Member Roden, Council Member Hawkins, Council Member Briggs, Mayor Pro Tem Gregory, Council Member Wazny and Mayor Watts ABSENT: Council Member Johnson. Mayor Watts opened the meeting at 2:00 with Council moving to Closed Session at 2:03 p.m. 1. Closed Meeting A. ID 16 -013 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. [TMPA] B. ID 16 -056 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 800 block of East Sycamore 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. C. ID 16 -071 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 300 block of East McKinney Street, 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. City of Denton City Council Minutes January 12, 2016 Page 2 D. ID 16 -078 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 condemnation of (i) real property located generally west of the 2600 block of South Mayhill Rd. in the City of Denton, Denton County, Texas; and (ii) real property located generally in the 3900 block of Quailcreek Rd. 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 litigation with the property owner. Consultation with the City's attorneys regarding legal issues associated with the condemnation 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 litigation. [ Mayhill Road Widening Project] E. ID 16 -067 Consultation with Attorneys - Under Texas Government Code, Section 551.071. Hold a discussion with the City's attorneys and provide direction with regard to City of Denton Ethics provisions and state and federal law and regulations as it concerns ethics matters and regulation of the conduct of public officials. A public discussion of this legal matter would conflict with the duty of the City's Attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Following the completion of the Closed Meeting, the City Council convened in a 2nd Tuesday Session. 1. Work Session Reports A. ID 16 -066 Receive a report, hold a discussion, and provide staff direction concerning City of Denton Ethics provisions, and state and federal law, regulations, and policy related to ethics issues and regulation of the conduct of public officials. Anita Burgess, City Attorney, presented a continuation of her previous ethics discussion at a prior meeting. She reviewed what had been done to date with the Ethics Committee and prior discussions regarding what was covered by current law. The Denton ethics provision including what was the issue needing attention was also reviewed. Council Member Wazny, Chair of Ethics Commission, made a presentation on conflict of interest for matters before a governing body. She felt state law was not adequate enough for conflict of interest. Her next item concerned contracts with the City of Denton as there was a fiduciary relationship with Council and the Planning and Zoning Commission. The City's ethics policy should also include fiduciary relationships. The recusal regulations from the State lacked strength in terms of the Planning and Zoning Commission and Council. Property ownership contiguous or close to property being considered by a governing body should be included in the conflict of interest including family members and business relationships. In terms of post- employment, Council, the Planning and Zoning Commission and managerial employees should have a two year City of Denton City Council Minutes January 12, 2016 Page 3 waiting period before working for a project if that individual voted on or worked on that project while in office. State law did not address this. Council discussed capping the amount of personal investment instead of 10 %. Mayor Watts suggested holding another discussion on the specifics presented by Council Member Wazny as it was difficult to do so at this time without adequate preparation. Council Member Roden asked about the White Paper from Attorney General Abbott that Council Member Wazny referenced. He questioned if it was making recommendations on what was lacking in state law. Council Member Wazny stated that it was just an explanation of the state laws and she added her own comments. Council Member Roden questioned if the property issue included any land, past or presently owned. Council Member Wazny stated that the 10% could be replaced with any financial interest with no dollar amount. Her focus was with business ownership, not with an individual but as a broker. Mayor Pro Tem Gregory stated that he was not opposed to revising the ordinance or the policies or making an ordinance in place of a resolution. However, he wanted to know where the problems were. He was interested in specific definitions as they were better than broad terms and probably would have hesitation on some of the specifics. He expressed concern about disenfranchising the voters especially in single member districts. Council Member Wazny stated that she was not as concerned about specific past employment but rather post- employment people who left the City after working on a project for a developer and then went to work for the developer. Mayor Pro Tem Gregory questioned how that would be enforced if the individual was no longer on Council or employed by the City. Mayor Watts stated that as Council discussed these more specifically, he felt some of the provisions presented he would not have a problem with but did have concerns about some of them. The fiduciary interest with realtors was a good question but he was not sure about a broker and it would be a hard issue with past transactions. Council Member Briggs stated that there was a perception that Council did not operate in a manner that put personal interests aside. She was in support of an ethics ordinance but felt it was important to discuss it. The purpose was not to make allegations of past members, current members or employees. Mayor Pro Tem Gregory stated that he would like to look at working to help citizens understand that Council was voting on what was best for the whole City and not for individuals. He did not want to create an ordinance that would disqualify a segment of the population from running for City of Denton City Council Minutes January 12, 2016 Page 4 Council or make a hardship on Council or their families. He was in favor of crafting an ordinance that was in the best interest of the City but not harm council members or put people out of work. Mayor Watts stated that an ethics ordinance did not make people ethical but rules helped set up parameters on what to follow. He was in favor of a discussion once Council had time to study the issues presented by Council Member Wazny. The details would be very important when crafting an ordinance and depending on how it was crafted, could disqualify some people who would be helpful to the community. Mayor Pro Tem Gregory stated that Council could not control how the media or individuals decided to interpret the actions of Council. All they could do was behave in an ethical fashion in the best interest of the City. Council Member Wazny stated that her goal was prevention and education and not punishment. If the ordinance were created carefully, it could circumvent mistrust from the public and establish a ground rule for public officials. Council Member Roden asked the City Attorney to clarify statements made as they related to attending Closed Session after recusal. City Attorney Burgess stated that issue was an issue she did not agree with the Attorney General. She would never give such advice to her clients. That was not the best opinion in her opinion and she would not advise it. Council Member Roden asked what would be the maximum penalty that could be levied against an official who violated a financial interest. City Attorney Burgess stated that a municipal ordinance could carry a Class C misdemeanor which would be less than a Court could impose. She would agree with the proposition that Council could be more stringent regarding conflict provisions. There already was a provision in the Charter which the voters had enacted that already went beyond State law that included both officers of the City and employees. She felt Denton was unique with that regard as she did not know if other cities had this type of provision in their local Charter. Council Member Roden stated that the writers of the Charter which was ratified by the voters felt that Chapter 171 should rule on that particular issue. City Attorney Burgess stated that they indicated that they wanted Chapter 171 as ruling for conflict of interest. Council Member Roden questioned the City Attorney that in terms of post- employment and whether she aware of any ability of a city to regulate council or staff employment choices once an individual left an official position with a city. City Attorney Burgess stated that there might be some cities that might try to do that but she would need to research that. City of Denton City Council Minutes January 12, 2016 Page 5 Council Member Roden questioned whether the discussion involved real problems or perception. He questioned whether Council Member Wazny's angst for the community was based on real problems that she agreed with; that they were in the midst of corruption in City Hall and needed to save the public trust. Or it was based on not real problems but perception. He was trying to understand what the basis of people's concerns were. Council Member Wazny stated that there were some issues that the City had that threw questions to the public so it was not just perception. There were issues that they had witnessed and had problems with. Council Member Roden stated that at some point those issues would have to be named and discussed if the perception for those issues were a real problem. At some point the discussion would have to get very specific and discuss if that was a real problem or a misunderstanding on what counts for a conflict of interest. He cautioned to be careful when carrying forward citizen angst to be specific on whether that was believed to be based on something real or carrying forward false perceptions. Council Member Wazny stated that in terms of the Charter when the City grew, the Charter had to grow with it. It was not a roadblock that the Charter could not be changed. Mayor Pro Tem Gregory stated that the City Attorney did not say it was a roadblock but rather would require a Charter amendment and had to be considered in the sequencing of an ordinance for a vote from the citizens. Council Member Briggs stated that whether perception or reality, the result was the same. There was a serious issue in the City now and an ethics ordinance could safeguard staff and Council from perceptions. Mayor Watts did not want an ethics ordinance to preclude political courage. There were all different kinds of opinions on conflict of interest or public mistrust of the Council. This issue was dealing with interpretation and subjective interpretation but the rules were not objective. He wanted to know the extent it reached out. If someone violated the ethics ordinance, he would like to know the process of enforcement if it could even be enforced. Council Member Wazny stated that if someone signed an ethics ordinance stating that and then went off and worked for a company, that person would no longer have a political career as the public would know that it had happened. Mayor Pro Tem Gregory stated that when something was put in an ordinance it had to be defined and when defined someone would not be happy. Where it made a difference was when people went to the polls as they did not have to have a definition. The best cure for political ethics was elections. He seriously doubted that more rules or another layer of bureaucracy would cause people to have better character than they had now. He did not feel that new rules would make people more ethical than they were before. Mayor Watts questioned if Council Member Wazny would present the names of the citizens she had working on the proposed ordinance. City of Denton City Council Minutes January 12, 2016 Page 6 Council Member Hawkins expressed concern that anyone who could represent the City well was not precluded on Council because of a technicality. The ordinance had to have specific provisions. Council Member Roden stated that the question was whether to start with this ordinance or not and whether there were problems significant enough with issues that rose to the level to consider the issue. He was not convinced that the problems were that great and questioned the real problems that were being addressed. Council Member Wazny felt it did deserve the time. Council Member Hawkins felt that it was worthy of a little more time to consider if Council wanted to continue. Council Member Briggs stated she was in favor of investing more time into the issue. Mayor Watts stated that he was open to having a little more time but not approaching it in the vein that there was a problem. Do not associate moving forward that there was a problem. Mayor Pro Tem Gregory stated that he was in favor of more discussion. B. ID 16 -012 Receive a report, hold a discussion, and give staff direction on Downtown events. Aimee Bissett, Director of Development Services, discussed recent events in the Downtown with an increased interest in events to be held in the downtown area. She reviewed special events application for events that were to be held both in the parks and in the downtown area and presented the number of events in various categories that occurred downtown from 10/2104 to present. She noted that there was an event season in Denton and the trend of locations for these events. Information on how many events closed downtown streets, challenges for special events, and possible solutions were noted. Council discussed policy considerations for the downtown area, new ideas and how were they considered. Multiple events on a single weekend were discussed along with how best to facilitate those situations. A question was raised regarding any consideration to limit how many weekends in a row or parking lots would be closed in a row due to mixed businesses in the downtown area and staff resources. A consideration was the heavy impact for closings in the downtown area that were not beneficial to businesses and the impact on public resources such as the Police Department with numerous events. C. ID 16 -014 Receive a report, hold a discussion and provide staff direction on the proposed development of a surface parking lot on the site of the Old Central Fire Station. Mark Nelson, Director of Transportation, presented information on a proposal to install a surface parking on the site of the Old Central Fire Station. He reviewed the current conditions /use and finance options from low to high to create the parking lot. Staff was recommending the high option, Option 3. The schedule could start at end of this month given direction to move forward City of Denton City Council Minutes January 12, 2016 Page 7 with temporary surface parking in the March time frame and then move forward with a comprehensive design with a 6 month time frame. Council Member Hawkins stated that he had been approached by members of St. Andrew's Church who had offered their parking lot west of the Church in exchange for Our Dailey Bread to move into the old fire station. He requested Council delay making a decision for a week or so to consider their proposal. Mayor Pro Tem Gregory stated that he was willing to wait a week or two but had heard that Our Daily Bread was moving to Serve Denton that had a larger location available. In terms of options, he suggested a hybrid with the middle option money and use that difference in amount from the high option to apply to the purchase of property on Bolivar Street to square off the lot. Council Member Briggs stated that she liked the second option and Mayor Pro Tem Gregory's recommendation. Council Member Roden stated that he would like more specific recommendations regarding Our Dailey Bread and what was being discussed before giving direction. He was also open to thinking about City Hall West and the parking lot as part of the consideration. He would be in favor of the lower cost option if in conjunction with City Hall West. Council Member Wazny was in favor of a time line of a couple of weeks with specifics to consider the request. She agreed that City Hall West and the parking area were all one discussion. There was a need to look at the big picture but parking was needed in the area. 2. Concluding Items A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting and Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Mayor Watts requested a Work Session to consider citizens comments moved from the end of the meetings. Council Member Wazny requested the rules in writing regarding Council Members being allowed to attend the Closed Session of board /commission meetings. City of Denton City Council Minutes January 12, 2016 Page 8 Council Member Roden requested a report if there were rules in place to restrict private parking lots in downtown area. Council Member Roden requested a report regarding private parking lot being used as used car lot sales and whether that was violating any codes in the downtown area. With no further business, the meeting was adjourned at 7:20 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 23, 2016 Denton Municipal Electric hosted an informational meeting regarding the Denton Renewable Plan and activities related to future power supply plans to meet the City's growth and needs. The meeting was held Saturday, January 23, 2016 at 9:30 a.m. at the Denton City Council Chambers. The meeting gave members of the public an opportunity to ask questions and receive answers from subject matter experts. Attendees for the Council included Mayor Watts, Mayor Pro Tem Gregory and Council Members Hawkins, Roden, Wazny and Briggs. Kenneth Banks, Environmental Services and Sustainability Director, introduced the members of the Council, the Public Utilities Board and staff present. The following staff members made presentations: Brian Daskam — overview of the Plan Galen Gillum — safety aspects Phil Williams — rates Mary Hanner Davis with Burns and McDonnell — air permits Kenneth Banks — emissions Jim Maynard - alternatives Approximately 153 individuals were in attendance who presented their views of the Plan and asked questions of the staff. With no further business, the meeting was adjourned at 1:50 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 26, 2016 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, January 26, 2016 at 1:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Roden, Council Member Johnson, Council Member Hawkins, Council Member Briggs, Mayor Pro Tern Gregory, Council Member Wazny and Mayor Watts, ABSENT: None. 1. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for January 26, 2016. Council Member Wazny stated that she had questions regarding Consent Agenda Items A and D and requested Item D be considered individually. Mayor Watts stated that he had the same questions regarding Consent Agenda Item A regarding the lease as Council just received it on Monday. City Manager Campbell stated that staff had more information on the lease for Council either during the Work Session or the Closed Session. Mayor Watts stated that he had received several emails on the Consent Agenda Item D and would be more comfortable with clarification from the consultant regarding the fees. 3. Work Session Reports A. ID 16 -036 Receive a report, hold a discussion, and give staff direction regarding efforts to ensure reliable and affordable access to high -speed Internet services for our citizens and businesses. Melissa Kraft, Director of Technology Services, presented information on the progress made identifying additional Internet services. She detailed information on broadband basics definition, consumer grade connections in terms of DSL, and cable and wireless connections. Business grade Internet access service definitions and background information on requests for this type of service were noted. Staff had discussions with several providers on how to improve their service throughout the City. Those providers included Zayo, Verizon Wireless, and Charter. The staff recommendations were to develop a communication plan, continue working with Internet Service providers and initiate conversations with Frontier Communications to address potential improvements to residential services. Council discussion included what size business needed high speed internet, what was on the horizon in 5 years from now in terms of needed speed, continued discussions with providers for Internet connectivity for those not able to afford it, have the City work with providers to make sure City of Denton City Council Minutes January 26, 2016 Page 2 lower income neighborhoods had Internet connections, and consider a committee to study the issue, B. ID 16 -079 Receive a report and hold a discussion on the status of the Enhanced Right - of -Way Maintenance Program. Lancine Bentley, Community Improvement Services Division Manager, stated that the objective of her presentation was to provide an update on the Enhanced Right -of -way maintenance program including past accomplishments, upcoming Consent Agenda items and future plans. She showed before and after photos of areas they had worked on and reviewed the Green Ribbon Program that Community Improvement Services was involved with. Upcoming Consent Agenda items for maintenance contracts and agreements with TxDOT and Union Pacific were reviewed. Future plans included a contractor's meeting, daily monitoring, assess feasibility of other ROW projects, solicit community feedback, the Rail Yard project and providing Council updates. Council discussed tree trimming on private property versus public property and how to determine who was responsible for the maintenance of those areas, concerns regarding sustainability over the years to maintain areas, and what other cities were doing for sustainability of the maintenance. C. ID 16 -082 Receive a report, hold a discussion, and give staff direction regarding the creation and implementation of Small Area Plans and the creation of a Small Area Plan for the Fry Street area. Sophie Huemer, Associate Planner, presented information on the Denton Plan 2030 and small area planning plus the growing need for a small area plan in the Fry Street area. She reviewed the background of small area planning in the Denton Plan 2030 which included the importance of the process, importance of the implementation, and Fry Street being identified as the first area to participate in the Small Area Plan under Denton Plan 2030. Information on the street area in the plan and goals for the Fry Street Plan were presented. The small area plan process included community vision which included a steering committee selection, the setting of goals and expectation of the process, and holding a neighborhood meeting. The next steps were to select the committee, hold the first committee meeting and begin kickoff. Council discussed what would be done in the interim before the committee was formed and the process completed, whether this would add another layer to a development process, how the plan would help a developer know what was expected in a certain area, whether neighborhood involvement would include inside and outside the boundary of the plan area, the fact that makeup of the committee would be very important, that there were competing interests in the area, that the plan would not be a regulatory document, the boundaries of the plan and whether they were appropriate, the importance of involving the property owners at the front end of the process to ensure success at the end of the process, and thoughts regarding the makeup of the committee D. ID 16 -102 Receive a report and hold a discussion regarding an amendment to the Rayzor Ranch Overlay District Amendment, Public Hearing item ID 16 -045. City of Denton City Council Minutes January 26, 2016 Page 3 Aimee Bissett, Director of Development Services, stated that the discussion would center on an amendment that would align the goals of the Rayzor Ranch Town Center vision presented to Council January 6, 2015 with the Concept Plan. She showed the difference between the original and proposed concept plan and the proposed changes in some of the subareas within the plan. The Bubble Plan would be removed because it was not a regulatory document. The Concept Plan was the document that set the boundaries for the subareas. An amendment would also be proposed to clarify the criteria for approval for site plans. Council discussed the notification process and how in this instance it did not involve many residents. E. ID 16 -119 Receive a report, hold a discussion and provide staff direction on a proposal to renovate the Old Central Fire Station and examine surface parking options for downtown. John Cabrales, Assistant City Manager, presented an update on the status of parking at the old Central Fire Station. He reviewed the current conditions and use, and discussed the site development options in terms of a low, medium, high and hybrid option. There had been a prior discussion regarding the use of the facility for Our Daily Bread but at this time, they did not have a firm proposal. Staff was recommending Option 3. Council discussion included (1) keeping the rock walls in place as an amenity for landscaping when considering the parking lot construction, (2) Option 3 was too expensive at this time as it was not known what would happen with City Hall West, (3) whether to go with Option 2 or Option 3, (3) where the funding would be coming from for the two options, (4) not taking all of the funding from the General Fund, and (5) consider using TIF funds for part of the funding. Consensus of the Council was to proceed with Option 3. F. ID 16 -092 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. Phil Williams, General Manager - DME, reviewed the public question and answer session that was held on Saturday, January 23rd. He went through the Renewable Denton Plan in terms of what it would do for Denton and the support by the conclusions from the various sources. Council comments included reasons for moving ahead with this project at this time, the level of citizen participation was high, consideration of an outside consultant to review the proposal and provide options for consideration and the cost involved. Council questioned what type of consultant would be hired and what would be the purpose for the consultant; the mission of the consultant and what it would be trying to address. It was noted that consultants had been used in the in past when staff did not have the time or expertise in an area but in this case staff had the time and the expertise for the proposal. A consultant report that suggested using natural gas generation would not be supported by the public and would be said to be biased and flawed. Council discussed that hiring a consultant might bring the community together to confirm which direction to proceed and that before hiring a consultant, have staff provide more specific answers City of Denton City Council Minutes January 26, 2016 Page 4 to questions that might be lingering. Natural gas was the bridge from fossil fuels to other renewables. It was felt that there were three outstanding issues (1) a need for a definitive plan, (2) RFPs out on renewable energy to see those before making a decision, and (3) decide what to do with TMPA. The need was for responses to those issues before voting on a resolution with a critical question on what to do with TMPA. A suggestion was to pick a consultant within two weeks and complete the study by March/April. Williams stated that there would be a need to have someone familiar with ERCOT in order to present a good study of any proposal. Consensus of the Council was by February 2nd to have options on how to proceed with a consultant such as purchasing requirements; to be very clear on the scope and what types of options either what had been proposed or what else might be considered; and include the criteria to meet the goals expressed by Council that were to increase renewables at affordable rates and that maintained reliability. The need was to be specific on the scope of work, show the work that already had been done, whether it was flawed, whether there was a better conclusion and was that the right amount of money to spend. City Manager Campbell stated that staff would need time to research what consultants were available, what was the scope and how long it would take. He felt that it might be ready for Council discussion by February 161H Following the completion of the Special Called Work Session, the City Council convened in a Special Called Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. Closed Meeting: A. ID 16 -107 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's attorneys regarding ID 16 -098 of the January 26, 2016 Consent Agenda, as it concerns legal issues associated with that item where a public discussion of this legal matter would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. B. ID 16 -091 Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. Receive a presentation from Denton Municipal Electric staff ( "DME ") regarding public power competitive and financial matters pertaining to plans, strategies, opportunities, and developments for generation improvements to the DME system; discuss and deliberate strategies regarding same; discuss and deliberate opportunities and strategies for the City to acquire purchased power and enter into agreements regarding the same, in order to meet its future energy needs. Discuss, deliberate and provide Staff with direction. This item was not considered. C. ID 16 -097 Deliberations Regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code City of Denton City Council Minutes January 26, 2016 Page 5 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. D. ID 16 -132 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consult with City's attorneys regarding legal issues associated with the Rayzor Ranch Overlay District zone where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Special Called Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. CONSENT AGENDA Council Member Wazny asked that Item D be pulled for separate consideration. Council Member Hawkins noted that Items A, E, and F would pulled from consideration. Council Member Hawkins motioned, Mayor Pro Tern Gregory seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Item D which would be considered separately and Items A, E and F which would not be considered. 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. A. ID 16 -096 Consider adoption of an ordinance of the City of Denton, Texas approving an Office Lease 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. This item was not considered. City of Denton City Council Minutes January 26, 2016 Page 6 Resolution No. R2016 -002 B. ID 16 -109 Consider approval of a resolution of the City of Denton, Texas authorizing the prohibition of open carrying handguns into meeting rooms during certain open meetings and providing for an effective date. Ordinance No. 2016 -015 C. ID 16 -085 Consider adoption of an ordinance of the City of Denton, Texas, prohibiting left turns for any vehicle, except school buses, travelling southbound on Swisher Road at its intersection with Pockrus Paige Road on school days from 7:00 AM until 8:00 AM and from 2:30 PM until 3:30 PM; providing an exception for Denton Independent School District buses; providing a repealer clause; providing a savings clause; providing a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. The Traffic Safety Commission recommends approval (5 -0). E. ID 16 -158 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. This item was not considered. F. ID 16 -159 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. This item was not considered. Item D was considered. Ordinance No. 2016 -016 D. ID 16 -098 Consider adoption of an ordinance of the City of Denton, Texas, repealing Ordinance No. 2013 -248 and enacting a new ordinance relating to planning and development fees as it concerns; gas well drilling and production in the City of Denton and its extraterritorial jurisdiction; road damage remediation fee calculations due to damage to City of Denton roadways from gas well drilling and production activities in the city; assessment of penalties and interest; and setting an effective date. Aaron Leal, First Assistant City Attorney, clarified the action to be taken on this agenda item. The fee related to site plans for an initial review for the first two years and a second fee for following City of Denton City Council Minutes January 26, 2016 Page 7 that first two years. This was not a fee reduction. The fees represented the City's anticipated cost for recovery of the services provided for the site plans. Fees could not exceed the amount of providing the service. It was anticipated that there would be more applications in the first two years in clusters rather than the third year of the fee schedule. Mayor Pro Tem Gregory 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. 3. PUBLIC HEARINGS Ordinance No. 2016 -017 A. ID 16 -045 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending the procedural and development standards for the Rayzor Ranch Overlay District by superseding the previously approved Rayzor Ranch Overlay District classification and amending Chapter 35, Subchapter 7.15 of the City of Denton Development Code. The approximately 410 acre site is generally located on the north and south sides of US HWY 380 (University Drive), between I -35 and Bonnie Brae St. The Mayor opened the public hearing. Aimee Bissett, Director of Development Services, stated that this was a city initiated request. The purpose was to eliminate ambiguities between concept plan subareas and uses as well as amend any exhibits that conflict with past site plans. The amendment would align the goals of the Rayzor Ranch Town Center vision presented to Council on January 6, 2015 with the concept plan. She reviewed the history of the current plan and the summary of amendments. The Bubble Plan would be removed because it was not a regulatory document. The Concept Plan was the document that set the boundaries for the subareas. Density zone plan was being modified but there would be no changes to the density or number of units. The site plan exhibit had been modified to reflect the current built outs. There were also amendments to clarify the criteria for approval for site plans. The Planning and Zoning Commission as well as staff recommended approval. No one spoke during the public hearing. The Mayor closed the public hearing. Council Member Johnson motioned, Mayor Pro Tem Gregory seconded to adopt the ordinance. On roll call vote, Council Member Roden "aye ", Council Member Johnson "aye ", Mayor Watts "aye ", Council Member Hawkins "aye ", Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", and Council Member Wazny "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, City of Denton City Council Minutes January 26, 2016 Page 8 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 asked that the cell phone policy be revisited. 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 7:05 p.m. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES January 28 -29, 2016 After determining that a quorum was present, the City Council convened in a Planning Session at 8:00 a.m. on Thursday, January 28, 2016 and at 8:00 a.m. on Friday, January 29, 2016 at the Dallas /Fort Worth Marriott Solana, 5 Village Circle, Westlake, Texas. PRESENT: Council Member Roden, Council Member Johnson, Mayor Watts, Council Member Briggs, and Mayor Pro Tem Gregory, ABSENT: Council Member Hawkins and Council Member Wazny 1. ITEMS FOR DISCUSSION A. ID 16 -087 Discuss and give direction concerning the long, mid, and short term accomplishments, goals, objectives, plans, vision, mission, values, and strategic plan of the City of Denton as it relates to city services and infrastructure, streets, parks, finances, budget, planning, zoning and development, environmental issues, technology, public utilities, taxes, engineering, economic development, codes enforcement, transportation, purchasing, management, intergovernmental relations, boards, commissions and committees, meetings, and, without limitation, any and all operations of the City of Denton city government January 28, 2016. City Manager Campbell welcomed everyone and stated that he appreciated the time the Council Members were giving to this meeting. Karen Walz presented the objectives for the retreat. They included (1) create a forum for discussion among council members about the strategic issues and direction for the City; (2) focus on selected issues that were Council priorities for long term success but that may not be received through discussions during regular meetings; and (3) agree on a set of next steps to follow this retreat. Council Member Wazny arrived at the meeting. Budget Discussion Walz stated that a proposed desired /ideal outcome for the 2016 -17 budget would be a unanimous Council vote for adoption of the budget. How to get there might be to use a budget process that meant the right people had the right information at the right time to make decisions that led to a unanimous council support. Council and staff looked at the rolls and tasks for Council, staff and the community. Based on those roles and tasks, they determined what information needed to be available at each phase and how it should be communicated. Steps 1 of the process for roles and tasks involved determining what roll should the Council, staff and the Denton community play during each phase of the budget process and what were the major tasks to be completed. City of Denton City Council Minutes January 28 -29, 2016 Page 2 Council presented and discussed their ideas for the budget that might occur during the planning phase in terms Council goals, role of city staff; and the role of the community. Council presented and discussed their ideas for the budget that might occur during the department budget phase in terms of Council goals; the role of city staff, and the role of the community. Council presented and discussed their ideas for the budget that might occur during the City Manager's proposed budget phase in terms of Council goals; the role of city staff, and the role of the community. Council presented and discussed their ideas for the budget that might occur during the City Council's budget phase in terms of Council goals; the role of city staff, and the role of the community. Council Priorities for 2016 Walz reviewed the Vision statement for Denton, the Mission statement for Denton, and Values for Denton plus the Strategic Plan with Key Focus Areas. The past direction of top priorities for action in 2014 -15 were discussed. Council and staff discussed how to use the Second Tuesday City Council meetings as strategic planning sessions and whether it was still important to have those types of discussions on an agenda. Other areas of discussion included how much of an agenda to devote to strategic planning, efficient use of meeting time and staff resources, consider providing staff with the authority to make decisions and not have to come to Council, maximize the value of staff and Council time, time for finalizing agendas, and length of staff presentations. Meeting Process — points of discussion • Manage time • Streamline presentations • Highlight presentations but be prepared for detailed questions • Time estimates for going through the items • Time limits for staff presentations • Hold questions until the end of staff presentation • List on agenda time frame for items • Email questions in advance on agenda items • Change agenda out time from Thursday to Friday at 2:00 posting time. City Hall Facility Plan John Cabrales, Assistant City Manager, presented a brief overview of the 2002 HOK Space Study, current issues with core city facilities, City Hall West vision, assumptions made, and possible next steps for City Hall West information. A proposed vision for City Hall West along with work and funding assumptions were presented. The next steps in Phase I were noted. City Hall West information was presented in terms of one time needs, deferred CIP maintenance, and what to do City of Denton City Council Minutes January 28 -29, 2016 Page 3 with the building. Consideration would be needed on what type of reuse would be done for the building. Council discussion centered on needs versus wants, cost of land and /or buildings, being mindful of site selection in order to provide better services to citizens, and what was the vision for future. Council direction was to move ahead with a consultant to begin Phase I, return in the near future for Council discussion on big ticket items for the consultant and discussion on funding options plus what was the economic benefit of City Hall West. Friday, January 29th The meeting reopened as a continuation of the prior day's meeting. PRESENT: Council Member Roden, Council Member Johnson, Mayor Watts, Council Member Wazny, and Mayor Pro Tern Gregory, ABSENT: Council Member Hawkins and Council Member Briggs Communications with the public Reports were presented on the hypothetical communications situation. Discussion points included what was most important to your team in the message you communicated to the public, why did you select the communications methods you chose, how did the need for confidentiality before the announcement affect your process. Points of consideration were multiple audiences, focus on explaining the facts, not being reactive, fringe versus most audiences, confidentiality constraints, policy versus implementation, and respect. Council discussed how to best to communicate in terms of how to relate goals and priorities with staff. Consider relaying concern when mixed messages were presented by Council and request clarity on what the consensus would be on how to proceed. Respect among Council, staff and the public process and the associated roles was important. These had to be fact - based. The Council role was to set the policy with a clear consensus and staying with the consensus. Other considerations were to monitor performance to achieve the goals, the technical staff expertise at the City and that Council should be respectful at the technical level on issues, do not be redundant for better time management and staff should communicate when the direction was not clear. Immediate items to consider included the budget, financial forecast, strategic planning, and operation and maintenance. With no further business, the meeting was adjourned 10:20 .a.m. City of Denton City Council Minutes January 28 -29, 2016 Page 4 CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -363, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance accepting a First Amendment to a Chapter 212 Texas Local Government Code Non - annexation Agreement between the City of Denton, Jean Ann Baker, and Ryan Capital Partners, LTD. to extend the term of such Agreement 120 days pending the execution of a new pre- annexation agreement with the City; authorizing the City Manager to execute the Agreement; and providing an effective date. BACKGROUND On March 3, 2015, the City Council adopted an ordinance (2015 -072) accepting a Non - Annexation Agreement for agricultural, wildlife management, or timberland use properties within an area of land generally located on the north and south sides of Ryan Road, consisting of approximately 85 acres ( "NAA "). Unless extended by mutual agreement of the parties involved, this NAA will terminate on March 1, 2016. The owner of the property desires to enter into a new "pre- annexation agreement" that is more comprehensive than the current NAA in order to establish a development plan using enhanced development regulations other than those that apply within the City's limits. Staff has viewed this request as an opportunity to have potential developments in the area abide by standards that are comparatively more elevated and that will allow the City to secure a comprehensively planned, high - quality development instead of a conventional development pattern meeting the minimum requirements. The pre- annexation agreement may further maintain the integrity of the existing ESA and floodplain, ensure compliance with tree mitigation and preservation, and satisfy the impacts on Ryan Road. In order to negotiate the new pre- annexation agreement before termination of the NAA and annexation of the property, Staff is recommending that the NAA be extended for a period of at least 120 days. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION Staff recommends approval of an Ordinance accepting a First Amendment to the Chapter 212 Texas Local Government Code Non - annexation Agreement between the City, Jean Ann Baker, and Ryan Capital Partners, City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -363, Version: 1 Ltd., which shall extend the original NAA for 120 days. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On March 3, 2015, the City Council adopted an ordinance accepting a Non - Annexation Agreement. 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. Ordinance 2015 -072 2. Non - Annexation Agreement Amendment 3. Draft Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Munal Mauladad Deputy Director of Development Services City of Denton Page 2 of 2 Printed on 2/26/2016 s: \legal \our documents \ordinances \15 \ryan road accepting naa ordinance.doc ORDINANCE NO. 2015 -072 AN ORDINANCE PROVIDING FOR ACCEPTANCE OF ELIGIBLE NON - ANNEXATION AGREEMENT FOR AGRICULTURAL, WILDLIFE MANAGEMENT OR TIMBERLAND USE PROPERTIES WITHIN AN AREA OF LAND ADJACENT TO AND ABUTTING THE EXISTING CITY LIMITS OF THE CITY OF DENTON, TEXAS, GENERALLY IDENTIFIED AS RYAN ROAD ANNEXATION AREA OF APPROXIMATELY 85.6 ACRES GENERALLY LOCATED ON THE NORTH AND SOUTH SIDES OF RYAN ROAD, TRACT 1 BEING APPROXIMATELY 175 FEET EAST OF ANDREW STREET AND ADJACENT TO RYAN ROAD ON THE SOUTH SIDE AND MEASURES APPROXIMATELY 80.9 ACRES. TRACT 2 IS APPROXIMATELY 1,093 FEET EAST OF ANDREW STREET AND ADJACENT TO RYAN ROAD ON THE NORTH SIDE AND MEASURES APPROXIMATELY 4.7 ACRES SPECIFICALLY IDENTIFIED IN EXHIBIT "A" ATTACHED HERETO; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Section 43.061, Subchapter C -1, Local Government Code, a home rule city is authorized to annex certain areas that are not required to be in an annexation plan, and the City desires to pursue annexation of the Ryan Road Annexation Area, as hereinafter described; and WHEREAS, Section 43.035, Subchapter B, Local Government Code requires the City to make offers of non - annexation development agreements to the owners of all properties which have been appraised for ad valorem tax purposes as land for agricultural, wildlife management or timberland within the area to be annexed; and WHEREAS, under a non - annexation agreement between an eligible property owner and the City, the land subject to the agreement retains its extraterritorial status and the owners of such land must abide by the City's development regulations as if such land were within the City limits, as provided further in such agreement; and WHEREAS, the City has offered said non - annexation agreements for a one year term in light of the rapid growth of the Denton area, the need to assure orderly growth, and the inadequate land area currently within the Denton city limits; and WHEREAS, the owners of some eligible properties have executed such non - annexation agreements; the owners of other properties executed such non - annexation agreements but there were defects in the legal description of such properties, or otherwise ineligible; and yet other owners to whom notices were sent did not execute the agreements within the allotted period of time, thereby declining the City's offer; and WHEREAS, the City and the owners of eligible properties with insufficient legal descriptions have corrected defects therein; and WHEREAS, the Denton City Council deems it to be in the best interests of the citizens of the City of Denton to enter into such non - annexation agreements with eligible property owners who timely submitted non - annexation agreements and have now corrected any legal defects therein; NOW, THEREFORE, s: \legal \our documents \ordinances \15 \ryan road accepting naa ordinance.doc THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION„ 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The area of land which abuts and is adjacent to the existing corporate limits of the City of Denton, Texas, known as Ryan Road Annexation Area, is described in Exhibit "A ", attached hereto and incorporated herein, and depicted in Exhibit "B," attached hereto and incorporated herein (except that if there is conflict between the Exhibits, "A" and "B" shall control). SECTION 3. Certain non - annexation agreement relating to eligible properties within that parcel identified as Ryan Road Annexation Area, as described and depicted in Exhibits A and B, which have been properly executed by the owners of those properties and which have legally sufficient property descriptions, are hereby approved by the City of Denton and are attached hereto and incorporated herein by reference as Exhibit "C ". SECTION_m4. The City Manager is authorized and directed to sign the non - annexation agreement contained within Exhibit "C" for and on behalf of the City of Denton as a ministerial act, but with an effective date of this Council's action on same. The City Manager shall further arrange forthwith for the recordation of non - annexation agreement in the real property records of Denton County, Texas. SECTION 5. In the event the City Council does not annex that parcel identified as Ryan Road Annexation Area, the City Manager is authorized to rescind the City's action accepting said non - annexation agreements within six months of the effective date of this Ordinance should any property owners subject to the agreements so desire. SECTION 6. Should any paragraph, section, sentence, phrase, clause or word of this Ordinance be declared unconstitutional or invalid for any reason, the remainder of this Ordinance shall not be affected thereby. $ECTIONwwT This Ordinance shall take effect immediately on its passage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AND IT IS SO ORDERED. Passed b the City Council reading this 3 day of '2015. Y Y g Y -� .. . R CHRIS - TS, MAYOR .. "'� -� Page 2 sAlegal \our documents \ordinances \15 \ryan road accepting naa ordinance.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:M Page 3 Exhibit A RYAN ROAD 80.9 ACRE TRACT 1 All that certain lot, tract or parcel of land lying and being situated in the County of Denton, State of Texas, and presently being embraced by the Denton city limit boundaries of record and established by the annexation ordinances as follows: Ordinance 2001 -090, Ordinance 1977 -005, Ordinance 1999 -089 and Ordinance 1999 -176; and being situated in the T. Labor Survey, Abstract Number 779 and the N. Britton Survey, Abstract Number 51 and being all of the 65.504 acre tract of land and all of 15.435 acres of land as described in the deed as recorded in Volume 2522 Page 898, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a northwest corner of the existing Denton city limits as established by Ordinance No. 1975 -005 and being a corner of the existing Denton city limits as established by Ordinance No. 2001 -090; THENCE South, along a west line of said existing Denton city limits established by Ordinance No. 1977 -005 and along a east line of said existing Denton city limits established by Ordinance No. 2001 -090 to a distance of 30 feet to the point of beginning of the herein described tract; THENCE South, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 1,306.6 feet to a point for a corner; THENCE South 89 degrees 01 minutes West, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 605.5 feet to a point for a corner; THENCE South 01 degrees 50' minutes East, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 674.62 feet to a point for a corner and being a northerly northeast corner of existing Denton city limits established by Ordinance No. 1999 -089 and being the northeast corner of Lot 39, Block J, of Ryan Ranch Estate Phase I, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet S, Page 122, of the Plat Records of Denton County, Texas; THENCE South 88 degrees 35 minutes 22 seconds West, along the existing Denton city limits established by Ordinance No. 1999 -089, at a distance of 144.51 feet passing the northwest corner of said Lot 39 and being the northeast corner of Ryan Ranch Estates Phase II, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet T, Page 333, of the Plat Records of Denton County, Texas, and along the north line of said Ryan Ranch Phase II, a total distance of 1339.57 feet to a point for a corner and being the northwest corner of said Ryan Ranch Estate Phase II addition and being a corner of the existing Denton city limits established by Ordinance No. 1999 -089; THENCE South 00 degrees 35 minutes 59 seconds East, along the existing Denton city limits established by Ordinance No. 1999 -089 and along the west line of said Ryan Ranch Estates Phase II addition, a distance of 665.43 feet to a point for a corner and being the southeast corner of the 0:08 acre tract of land as described in the deed to the City of Denton from Melbagene Ryan as recorded by County Clerk file number 2003 - 196087, Real Property Records, Denton County, Texas; Page 1 of 2 September 30, 2014 THENCE North 88 degrees 17 minutes 03 seconds West, along the south line of said 0.08 acre tract a distance of 80.20 feet to a point for a corner and being the southwest corner of said 0.08 acre tract and being the southeast corner of the existing Denton city limits established by Ordinance 1999 -176; THENCE North, along the east line of the existing Denton city limits established by Ordinance 1999 -176 and along the east line of Thistle Hill Estate Phase II, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet X, Page 147, of the Plat Records of Denton County, Texas, passing at a distance of 1,564.80 the northeast corner of said Thistle Hill Estate Phase II addition and also being the southeast corner of Thistle Hill Estate Phase I, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet R, Page 122, of the Plat Records of Denton County, Texas a total distance of 2,612.80 to a point for a corner and being on a south line of the existing Denton city limits established by Ordinance 2001 -090 and being the northeast corner of said existing Denton city limits established by Ordinance 1999 -176 and being located on the south line of Ryan Road; THENCE the following six calls being along the south line of said Denton city limits established by Ordinance 2001 -090 and being along the south line of Ryan Road: 1. South 88 degrees 53 minutes 19 seconds East, a distance of 90.00 feet to a point for a 2. corner; South 89 degrees 19 minutes 23 seconds East, a distance of 174.90 feet to a point for 3. a corner; South 87 degrees 50 minutes 17 seconds East, a distance of 311.78 feet to a point for 4. a corner; North 89 degrees 09 minutes 56 seconds East, a distance of 155.43 feet to a point for 5. a corner; North 87 degrees 44 minutes 07 seconds East, a distance of 100.92 feet to a point for 6. a corner; North 88 degrees 21 minutes 07 seconds East, a distance of 645.84 feet to a point for a corner; THENCE East, along the south line of said Denton city limits as established by Ordinance 2001- 090 and along the south line of said Ryan Road, a total distance 580.07 feet more or less to the POINT OF BEGINNING and containing 80.9 acres of land. Page 2 of 2 September 30, 2014 RYAN ROAD 4.7 ACRE TRACT 2 All that certain lot, tract or parcel of land lying and being situated in the County of Denton, State of Texas, and presently being embraced by the Denton city limit boundaries of record and established by the annexation ordinances as follows: Ordinance 2001 -090 and Ordinance 1973- 017; and being situated in the T. Peacock Survey, Abstract Number 1589 and the C. Poullalier Survey, Abstract Number 1006 and being part of the 5.518 acre tract of land as described in the deed to Jean Ann Baker and James Samuel Tull from Melbagene Tull Ryan as recorded by County Clerk file number 2011 - 119346, Real Property Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a point in the centerline of Ryan Road and being the southwest corner of said C. Poullalier Survey and the southeast corner of said T. Peacock Survey and being a corner of the existing Denton city limits as established by Ordinance No. 2001 -090 and being a corner of the existing Denton city limits as established by Ordinance No. 1973 -017; THENCE North along the existing Denton city limits established by Ordinance No. 2001 -090 and Ordinance No. 1973-017, a distance of 30 feet to a point for a corner and a corner of said Denton city limits established by Ordinance 2001 -090 and being the point of beginning of the herein described tract; THENCE West along the north line of said Ryan Road and a north line of said Denton city limits established by Ordinance 2001 -090, a distance of 805.47 to a point for corner on the west line of said 5.518 acre tract also being a corner of said Denton city limits established by Ordinance 2001 -090; THENCE North along a west line of said existing Denton city limits established by Ordinance 2001 -090 and along the west line of said 5.518 acre tract a distance of 239.41 feet to a point for a corner being the southwest corner of Lot 1, Block E of the Montecito Del Sur, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Volume 9, Page 34, of the Plat Records of Denton County Texas and being the northwest corner of said 5.518 acre tract, also being a corner of said Denton city limits established by Ordinance No. 1973-017; THENCE North 88 degrees 14 minutes 27 seconds east, along a south line of said Montecito Del Sur Addition and along a south line of said Denton city limits established by Ordinance No. 1973 -017 and along the north line of said 5.518 acre tract a distance of 832.73 feet to a point for a corner and being a corner of said existing Denton city limits as established by Ordinance 1973- 017 and being the northeast corner of said 5.518 acre tract; THENCE South 00 degrees 33 minutes 12 seconds east, along the east line of said 5.518 acre tract and along a east line of said Montecito Del Sur Addition and along said Denton city limits as established by Ordinance 1973 -017 a total distance 252 feet more or less to the POINT OF BEGINNING and containing 4.7 acres of land. Page 1 of 1 September 30, 2014 r r Exhibit Exhibit B LOCATION MAP 4.7 acre & 80.9 acre Annexation tracts 590 295 0 590 1,180 1,770 Feet i MJ *a Exhibit "C" slp1annin&rojects\2014 cases \a 14 -0002 ryan roadlfinal documentsVnon- annexation agreement ryan road a14 -0002 final,doc CHAPTER 212 TEXAS LOCAL GOVERNMENT CODE NON - ANNEXATION AGREEMENT This Agreement is entered into pursuant to Section 212.172 Tex. Local Gov't Code by and between the City of Denton, Texas (the "City ") and Jean Ann Baker and Ryan Capital Partners, Ltd ( "Owners "), the property owners of the hereinafter described property (the "Property ") in Denton County, Texas, sometimes individually or collectively referred to as "Party" or "Parties ": That property described in Exhibit A and B; and graphically depicted in Exhibit C located on the north and south sides of Ryan Road. Tract 1 is approximately 175 ft east of Andrew Street and adjacent to Ryan Road on the south side and measures approximately 80.9 acres. Tract 2 is approximately 1,093 ft east of Andrew Street and adjacent to Ryan Road on the north side and measures approximately 4.7 acres. WHEREAS, the City has given notice of its intent to institute annexation proceedings for the Property in accordance with Tex. Loc. Gov't Code ch. 43; and WHEREAS, Owners desire that the Property remain in the City's extraterritorial jurisdiction ( "ETJ ") for the term of this Agreement; WHEREAS, Owners and the City acknowledge that this Agreement between them is binding upon the City and the Owners and their respective successors and assigns for the term of the Agreement; WHEREAS, the Denton County Appraisal District records show that the Property currently is appraised for ad valorem tax purposes as land for agricultural or wildlife management use, or timber land pursuant to Tex. Tax Code chapter 23.C, D, or E; and WHEREAS, OWNERS represent that it is their intention not to develop the Property during the term of this Agreement; and WHEREAS, Tex. Loc. Gov't Code section 43.035 authorizes a property owner and a municipality to enter into an agreement pursuant to Tex. Loc. Gov't Code section 212.172 for purposes of retaining land in the municipality's ETJ in exchange for the property owner's covenant not to develop the property and to authorize the municipality to apply development regulations not inconsistent with agricultural use; and WHEREAS, the Parties are desirous of entering into an agreement authorized under Tex. Loc. Gov't Code section 43.035; and WHEREAS, this Agreement is to be recorded in the Real Property Records of Denton County, Texas; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows: sAplanninglprojects12014 cases1a14 -0002 ryan roadTfinal documentslnon- annexation agreement ryan road a14 -0002 final-doe Section 1. Continuation of ETJ Status. The City guarantees the continuation of the extraterritorial status of the Property and agrees not to annex the Property for the term of this Agreement, as hereinafter defined, and any subsequent renewals as may be agreed upon by the Parties, subject, however, to the provisions of this Agreement. Section 2. Development Plan. The Owners covenant and agree that use of the Property for the term of this Agreement and any extensions agreed to by the Parties shall be limited to farm- related and ranch- related uses and customary accessory uses, and single - family detached farm or ranch dwellings, provided that no single - family dwelling may be located or constructed on a lot smaller than five (5) acres unless the lot was created prior to the date of this Agreement. The property owner may apply to the City for division of the land subject to this Agreement into parcels, each of which is at least five (5) acres in size, for the purposes set forth in this section without being in violation of this Agreement. Such uses and activities constitute the development plan for the Property in satisfaction of Tex. Loc. Gov't Code section 212.172(b). Section 3. Governing Regulations. The following City regulations shall apply to any development of the Property, as may hereafter be amended from time to time during the term, of this Agreement, provided that the application of such regulations does not result in interference with the use of the land for agricultural, wildlife management or forestry purposes and does not prevent the continuation of a use established prior to the effective date of this Agreement and which remains lawful at the time the Agreement is executed: (1) Zoning standards contained in the Denton Development Code ( "DDC "), as amended pursuant to The Denton Plan, 1999 -2020, as amended, including but not limited to the (RD -5) Zoning District regulations, and standards incorporated therein; (2) The subdivision and development regulations contained within the Denton Development Code, as amended, together with applicable Design Criteria Manuals (including construction, drainage, site design, solid waste, transportation, tree protection standards, and water /wastewater), Denton Mobility Plan and other approved Master Plans of the City of Denton, Texas, and the North Central Texas Council of Governments Standard Specifications for Public Works Construction, North Central Texas, October 2004 edition (NCTCOG Manual); (3) Denton building codes, as contained within Denton Code Chapters 17, 28 and 29, and DDC Subchapter 24, adopting: a. International Building Code, 2009 Edition with local amendments; b. International Residential Code, 2009 Edition with Appendix G and local amendments; C. The International Fire Code, 2009 Edition with local amendments; d. International Plumbing Code, 2009 Edition with local amendments; e. International Fuel Gas Code, 2009 Edition with local amendments; f. International Mechanical Code, 2009 Edition with local amendments g. Code of Ordinances Chapter 17, Denton Property Maintenance Code, as amended; 2 sAplanninglprojects12014 cases1a14 -0002 ryan roadTiinal documents\non- annexation agreement ryan road 04 -0002 final.doc h. International Energy Conservation Code, 2012 Edition with regional amendments; i. National Electric Code, 2011 Edition with local amendments; j. National Electric Safety Code, 2012 Edition, with regional amendments; k. Minimum housing and building standards, Denton Code § §28 -383 — 437 and §§ 17 -141— 210, as amended and as applicable; and 1. Irrigation Standards, Denton Code § §28- 441 -457; (4) Sign regulations, as contained within Subchapter 15 of the DDC, as amended; (5) Applicable water and wastewater connection, construction and on -site operation requirements, contained within Chapter 26 of the Denton Code of Ordinances, as amended, and Subchapters 16 and 21 of the DDC, as amended, the Denton Water and Wastewater Criteria Manual, as amended, and as supplemented by the Texas Water Code, as amended, Texas Natural Resources Code, as amended, Texas Utilities Code, as amended, and applicable administrative standards of the Texas Commission on Environmental Quality, as amended; (6) Applicable Flood Protection, Drainage and related standards, as contained within Chapter 30 of the Denton Code, as amended, subchapters 17 through 19 of the DDC, as amended, the Denton Drainage Criteria Manual, as amended, and as supplemented by requirements of the Texas Water Code, as amended, Texas Natural Resources Code, as amended, applicable administrative standards of the Texas Commission on Environmental Quality, as amended, and applicable administrative standards of the Federal Emergency Management Administration, as amended; and (7) Gas Well platting, drilling and production standards, as contained in §35.16.19 and subchapter 22 of the Denton Development Code, as amended and as applicable, and as supplemented by requirements of the Texas Utilities Code, the Texas Natural Resources Code, the Texas Water Code, and applicable administrative standards of the Texas Railroad Commission and Texas Commission on Environmental Quality, as amended. Section 4. Development Plan to Remain in Effect. Following termination of this Agreement for any reason, the Development Plan set forth in Section 2 shall remain in effect for a period of 180 calendar days thereafter, or until the effective date of the annexation and permanent zoning of the Property, whichever first occurs. The Parties covenant and agree that the City may deny any development application or plan of development that is submitted to the City for the Property during such period if such application or plan is inconsistent with the Development Plan. The Owners expressly waive any vested rights that might otherwise arise under local or state law, or by common law, from the submittal of such inconsistent development application. The Owners further agree that no use commenced or completed on the Property that is inconsistent with the development plan shall be considered established or in existence prior to the expiration of the 180 -day period during which the Development Plan is in effect. 3 sAplanning \projects\2014 cases %14 -0002 ryan roaMiinal documen0non- annexation agreement ryan road a14 -0002 final.doc Section 5. Agreement Deemed Void in Part, Annexation (A) If an Owner files any application or plan of development for or otherwise commences development of any portion of the Property inconsistent with the Development Plan provided in Section 2, sections 1 and 3 of this Agreement shall thereupon become null and void. (E) Upon expiration, or upon breach or termination of this Agreement for any reason, the City may initiate annexation of the property pursuant to Tex. Loc. Gov't Code subchapter C- 1, or other such other provisions governing voluntary annexation of land as may then exist. Owners expressly and irrevocably consent to annexation of the Property under such circumstances. Owners further agree that such annexation by the City shall be deemed voluntary, and not subject to the requirements and procedures for an annexation plan, as required by Tex. Loc. Gov't Code section 43.052, or successor statute. Section 6. Notice of Sale. Any person who sells or conveys any portion of the Property shall, prior to such sale or conveyance, give 30 days written notice of this Agreement to the prospective purchaser or grantee. A copy of the notice shall be forwarded to the City at the following address: City of Denton, Texas ATTN: Director of Planning and Development 221 N. Elm Street Denton, TX 76201 Section 7. Record_ ipg. This Agreement is to run with the Property and be recorded in the real property records, Denton County, Texas. Section 8. Severability. Invalidation of any provision of this Agreement by judgment or court order shall not invalidate any of the remaining provisions which shall remain in full force and effect. Section 9. Remedies. This Agreement may be enforced by either Owner or the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. Entry into this Agreement by Owner waives no rights as to matters not addressed in this Agreement. Section 10. Change in Law. No subsequent change in the law regarding annexation shall affect the enforceability of this Agreement or the City's ability to annex the properties covered herein pursuant to Section 4. Section 11. Venue. Venue for this Agreement shall be in Denton County, Texas. Section 12. Execution in Multiple Copies. This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. 4 s,lplanninglprojects12014 caseslal4 -0002 ryan roadlfmal documentslnon- annexation agreement ryan road a14 -0002 final.doc Section 13. Term and Extension. Unless extended by mutual agreement of the Parties, this Agreement shall terminate on March 1, 2016. The Effective Date of the Agreement shall be the date the Agreement is executed by the City. The Term may be extended upon mutual agreement of the Parties. Section 14. Survival of Covenants. The covenants in Sections 2, and 4 shall survive termination of this Agreement, together with any other provisions, as may be necessary for the implementation of those sections. The Parties hereto have executed this agreement as of JJ-, D , 2015. Owners c� ...._ Ii. . Ann Baker Ryan Capital Partners Ltd. By�_'4 1 . . ........ . M THE CITY OF DENTON, TEXAS THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the _% Q 44) day of 2014, by per4 tj Q r, ow WO-0 P .0 KIM PARKER dY/Y>•. lbtery Pt>bec. Stake ollrlotal My Commi^slon E0 rea 0121 -18 Notary Public, State of Texas.._.... 5 sAp1anninglprojects12014 casesW4 -0002 ryan roadvmal documentAnon- annexation agreement ryan road a14 -0002 final.doc THE STATE OF TEXAS } COUNTY OF DENTON } t was acknowledged before me on the /01 A day of ' 2015 b F This instrument =EW)Ores * * Not 6 Wyr Ct THE STATE OF TEXAS } COUNTY OF DENTON } Notary Public, State of Texas This instrument was acknowledged before me on the day of 2015, by _ __ Notary Public, State of Texas THE STATE OF TEXAS } COUNTY OF DENTON } This instrument was acknowledged before me on the day of 2015, by Notary Public, State of Texas Ci s: 1planninMprojects\2014 cases1a14 -0002 ryan roadUmal documentslnon- annexation agreement ryan road a14.0002 final.doc THE STATE OF TEXAS COUNTY OF DENTON This insirtimm was lE before City of Denton, �,' JENNIFER WALofR Notary Texas v° My Commission Cxp4es December 14, 2018 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY,,. ., V/ day of A —, $2015, by Ity City Manager/Designated K Ftibli State of Texas Exhibit A RYAN ROAD 80.9 ACRE TRACT 1 All that certain lot, tract or parcel of land lying and being situated in the County of Denton, State of "I "e as, and presently being embraced by the Denton city limit boundaries of record and established by the annexation ordinances as follows: Ordinance 2001 -090, Ordinance 1977 -005, Ordinance 1999 -089 and Ordinance 1999 -176; and being situated in the T. Labor Survey, Abstract Number 779 and the N. Britton Survey, Abstract Number 51 and being all of the 65.504 acre tract of land and all of 15.4:35 acres of land as described in the deed as recorded in Volume 2522 Page 898, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING, at a northwest corner of the existing Denton city limits as established by Ordinance No. 1975 -005 and behig a comer of the existing Denton city limits as established by Ordinance No. 2001 -090; THENCE South, along a west line of said existing Denton city limits established by Ordinance No. 1977 -005 and along a east line of said existing Denton city limits established by Ordinance No. 2001 -090 to a distance of 30 feet to the point of beginning of the herein described tract; THENCE South, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 1,306.6 feet to a point for a corner; THENCE South 89 degrees 01 minutes West, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 605.5 feet to a point for a corner; THENCE South 01 degrees 50' minutes East, along the existing Denton city limits established by Ordinance No. 1977 -005, a distance of 674.62 feet to a point for a corner and being a northerly northeast corner of existing Denton city limits established by Ordinance No. 1999 -089 and being the northeast corner of Lot 39, Block J, of Ryan Ranch Estate Phase I, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet S, Page 122, of the Plat Records of Denton County, Texas; THENCE South 88 degrees 35 minutes 22 seconds West, along the existing Denton city limits established by Ordinance No. 1999 -089, at a distance of 144.51 feet passing the northwest corner of said Lot 39 and being the northeast corner of Ryan Ranch Estates Phase II, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet T, Page 333, of the Plat Records of Denton County, Texas, and along the north line of said Ryan Ranch Phase II, a total distance of 1339.57 feet to a point for a corner and being the northwest corner of said Ryan Ranch Estate Phase II addition and being a corner of the existing Denton city limits established by Ordinance No. 1999 -089; THENCE South 00 degrees 35 minutes 59 seconds East, along the existing Denton city limits established by Ordinance No. 1999 -089 and along the west line of said Ryan Ranch Estates Phase II addition, a distance of 665.43 feet to a point for a comer and being the southeast corner of the 0.08 acre tract of land as described in the deed to the City of Denton from Melbagene Ryan as recorded by County Clerk file number 2003 - 196087, Real Property Records, Denton County, Texas; Page 1 of 2 September 30, 20fl THENCE North 88 degrees 17 minutes 03 seconds West, along the south line of said 0.08 acre tract a distance of 80.20 feet to a point for a corner and being the southwest corner of said 0.08 acre tract and being the southeast corner of the existing Denton city limits established by Ordinance 1999 -176; THENCE North, along the east line of the existing Denton city limits established by Ordinance 1999 -176 and along the east line of Thistle Hill Estate Phase II, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet X, Page 147, of the Plat Records of Denton County, Texas, passing at a distance of 1,564.80 the northeast corner of said Thistle Hill Estate Phase II addition and also being the southeast corner of Thistle Hill Estate Pliase 1, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Cabinet R, Page 122, of the Plat Records of Denton County, Texas a total distance of "2,612.80 to a point for a corner and being on a south line of the existing Denton city limits established by Ordinance 2001 -090 and being the northeast corner of said existing Denton city limits established by Ordinance 1999 -176 and being located on the south line of Ryan Road; THENCE the following six calls being along the south line of said Denton city limits established by Ordinance 2001 -090 and being along the south line of Ryan Road: 1. South 88 degrees 53 minutes 19 seconds East, a distance of 90.00 feet to a point for a corner; 2. South 89 degrees 19 minutes 23 seconds East, a distance of 174.90 feet to a point for a corner; 3. South 87 degrees 50 minutes 17 seconds East, a distance of 311.78 feet to a point for a corner; 4. North 89 degrees 09 minutes 56 seconds East, a distance of 155.43 feet to a point for a corner; 5. North 87 degrees 44 minutes 07 seconds East, a distance of 100.92 feet to a point for a corner; 6. North 88 degrees 21 minutes 07 seconds East, a distance of 645.84 feet to a point for a corner; THENCE East, along the south line of said Denton city limits as established by Ordinance 2001- 090 and along the south line of said Ryan Road, a total distance 580.07 feet more or less to the POINT OF BEGINNING and containing 80.9 acres of land. Page 2 of 2 September 30, 2014 Exhibit B RYAN ROAD 4.7 ACRE TRACT 2 All that certain lot, tract or parcel of land lying and being situated in the County of Denton, State of Texas, and presently being embraced by the Denton city limit boundaries of record and established by the annexation ordinances as follows: Ordinance 2001 -090 and Ordinance 1973- 017; and being situated in the T. Peacock Survey, Abstract Number 1589 and the C. Poullalier Survey, Abstract Number 1006 and being part of the 5.518 acre tract of land as described in the deed to Jean Ann Baker and James Samuel Tull from Melbagene Tull Ryan as recorded by County Clerk file number 2011- 119346, Real Property Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a point in the centerline of Ryan Road and being the southwest corner of said C. Poullalier Survey and the southeast corner of said T. Peacock Survey and being a corner of the existing Denton city limits as established by Ordinance No. 2001 -090 and being a corner of the existing Denton city limits as established by Ordinance No. 1973 -017; THENCE North along the existing Denton city limits established by Ordinance No. 2001 -090 and Ordinance No. 1973-017, a distance of 30 feet to a point for a corner and a corner of said Denton city limits established by Ordinance 2001 -090 and being the point of beginning of the herein described tract; THENCE West along the north line of said Ryan Road and a north line of said Denton city limits established by Ordinance 2001 -090, a distance of 805.47 to a point for corner on the west line of said 5.518 acre tract also being a corner of said Denton city limits established by Ordinance 2001 -090; THENCE North along a west line of said existing Denton city limits established by Ordinance 2001 -090 and along the west line of said 5.518 acre tract a distance of 239.41 feet to a point for a corner being the southwest corner of Lot 1, Block E of the Montecito Del Sur, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof, recorded in Volume 9, Page 34, of the Plat Records of Denton County Texas and being the northwest corner of said 5.518 acre tract, also being a corner of said Denton city limits established by Ordinance No.1973 -017; THENCE North 88 degrees 14 minutes 27 seconds east, along a south line of said Montecito Del Sur Addition and along a south line of said Denton city limits established by Ordinance No. 1973 -017 and along the north line of said 5.518 acre tract a distance of 832.73 feet to a point for a corner and being a corner of said existing Denton city limits as established by Ordinance 1973- 017 and being the northeast corner of said 5.518 acre tract; THENCE South 00 degrees 33 minutes 12 seconds east, along the east line of said 5.518 acre tract and along a east line of said Montecito Del Sur Addition and along said Denton city limits as established by Ordinance 1973 -017 a total distance 252 feet more or less to the POINT OF BEGINNING and containing 4.7 acres of land. Page 1 of 1 September 30, 2014 , Exhibit C LOCATION MAP I-= �RVVATE N " 4.7 acre & 80.9 acre I w E Annexation tracts C, 0 ry S 590 295 0 590 1,180 1,770 DENTOT Exhibit Feet FIRST AMENDMENT TO CHAPTER 212 TEXAS LOCAL GOVERNMENT CODE NON - ANNEXATION AGREEMENT WITH JEAN ANN BAKER AND RYAN CAPITAL PARTNERS, LTD This First Amended Agreement ( "Amendment ") is entered into pursuant to Section 212.172 Tex. Local Gov't Code by and between the City of Denton, Texas (the "City ") and Jean Ann Baker and Ryan Capital Partners, Ltd. ( "Owners "), the property owners of the Property as defined herein, in City of Denton, Denton County, Texas (the "Property "), sometimes individually or collectively referred to as "Party" or "Parties." WHEREAS, the Parties entered into that certain Chapter 212 Texas Local Government Code Non - Annexation Agreement on or about February 10, 2015 ( "NAA ") concerning Property generally located on the north and south sides of Ryan Road as depicted in Exhibits A, B, and C to the NAA (the "Property "), which is incorporated by reference with effect given to the amendments as stated herein; and WHEREAS, the NAA is set to terminate on March 1, 2016, and the City has given notice of its intent to institute annexation proceedings for the Property in accordance with Tex. Loc. Gov't Code Ch. 43; and WHEREAS, the Parties desire to enter into a new Development Agreement pursuant to Tex. Loc. Gov't Code, Subchapter G, Sec. 212.172 prior to annexation, to establish a development plan under which certain general uses and development of the land shall include enhanced development regulations other than those that apply within the City's boundaries in the form of a pre- annexation agreement ( "PAA "); and WHEREAS, the Parties desire that the NAA be temporarily extended for the term of this Amendment in order to allow sufficient time to enter into the PAA, and acknowledge that the NAA, as amended herein, is binding upon the Parties and their respective successors and assigns; and WHEREAS, the Denton County Appraisal District records continue to show that the Property is appraised for ad valorem tax purposes as land for agricultural or wildlife management use, or timber land pursuant to Tex. Tax Code chapter 23.C, D, or E; and WHEREAS, the Owners represent that it is their intention not to develop the Property during the term of this Amendment until such time as the PAA is executed, and the Parties are desirous of extending the NAA as authorized under Tex. Loc. Gov't Code, Section 43.035 for the amended term; and NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows: SECTION 1. The recitals contained herein are true and correct. This Amendment is executed for the purpose of extending the term of the NAA between the Parties pending the execution of a 1 PAA. All terms of the NAA that do not conflict with this Amendment are still in full force and effect. SECTION 2. This Amendment is to be recorded in the Real Property Records of Denton County, Texas. SECTION 3. Section 4 of the NAA shall be amended to read as follows: Section 4. Development Plan to Remain in Effect. Following termination of this Agreement, as amended, for any reason, the Development Plan set forth in Section 2 shall remain in effect until such time as the Parties enter into a pre- annexation agreement or the effective date of the annexation and permanent zoning of the Property, whichever first occurs. The Parties covenant and agree that the City may deny any development application or plan of development that is submitted to the City for the Property during such period if such application or plan is inconsistent with the Development Plan. The Owners expressly waive any vested rights that might otherwise arise under local or state law, or by common law, from the submittal of such inconsistent development application. The Owners further agree that no use commenced or completed on the Property that is inconsistent with the development plan shall be considered established or in existence prior to the expiration of the 180 dff� period during which the Development Plan is in effect. SECTION 4. Section 13 of the NAA shall be amended to read as follows: Section 13. Term and Extension. Unless extended by mutual agreement of the Parties, the NAA and this Amendment shall terminate on the 120th day from the Effective Date. The Effective Date of the Amendment shall be the date the Amendment is executed by the City. The Term may be extended upon mutual agreement of the Parties. SECTION 5. The Owners expressly waive any vested rights that might otherwise arise under local or state law, or by common law, from the execution of the NAA and /or this Amendment. The Parties hereto have executed this agreement as of 12016. OWNERS: JEAN ANN BAKER Jean Ann Baker 2 RYAN CAPITAL PARTNERS LTD. By: James S. Tull Its: THE CITY OF DENTON, TEXAS: IRA THE STATE OF TEXAS } COUNTY OF DENTON } City Manager, Deputy City Manager, or Designated Representative This instrument was acknowledged before me on the day of , 2016, by Jean Ann Baker. Notary Public, State of Texas THE STATE OF TEXAS } COUNTY OF DENTON } This instrument was acknowledged before me on the day of 12016, by James S. Tull, Notary Public, State of Texas 3 THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the day of , 2016, by , City Manager /Deputy City Manager /Designated Representative, on behalf of the City of Denton, Texas. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Notary Public, State of Texas 11 S: \Legal \JADE Planning and Zoning Folders \2016.004 Good Samaritan \Ryan Road NAA Extension Ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A FIRST AMENDMENT TO A CHAPTER 212 TEXAS LOCAL GOVERNMENT CODE NON - ANNEXATION AGREEMENT BETWEEN THE CITY OF DENTON, JEAN ANN BAKER, AND RYAN CAPITAL PARTNERS, LTD.; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute a First Amendment to the Chapter 212 Texas Local Government Code Non - Annexation Agreement dated February 10, 2015 between the City, Jean Ann Baker, and Ryan Capital Partners, Ltd., in substantially the form of the amended agreement which is attached hereto and made a part of this ordinance for all purposes (the "First Amendment "). SECTION 2. The City Manager, or his designee, is authorized to exercise the City of Denton's rights and duties as set forth in the First Amendment. SECTION 3. This ordinance shall become effective immediately 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 ( CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -364, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. DATE: March 1, 2016 SUBJECT Consider approval of the Public Art Committee's recommendation to commission artist Mick Burson for the design and installation of a mural at the Patterson - Appleton Arts Center located at 400 E. Hickory St. as Public Art for the City of Denton; and declare an effective date. The Public Art Committee recommends approval (8- 0). BACKGROUND On August 20, 2013, City Council adopted Resolution No. 2013 -021 to the Public Art policy that establishes the Public Art Committee to serve as an advisory board to the City Council. This Public Art Committee, established by separate ordinance, will make recommendations on: Commissioning, placing, and installing of public art • Implementing of funding mechanism(s) for public art • Effective and efficient management of public art Ongoing maintenance of public art • Accessioning, deaccessioning and resiting of public art The Greater Denton Arts Council (GDAC) was approached by the 35 Denton event organizers to have local artist Mick Burson design and paint a mural on the east side of the Patterson - Appleton Arts Center. This project is an exciting way to further visually define the Arts Center as a dynamic and vibrant center for both emerging and established artists in our City. The new mural would be consistent with the City of Denton Public Art policy and added to the blank wall adjacent to the existing train mural. Both murals would be visible from the train station and the City's new innovation district. Side -by -side, these murals would present a nod to the historic nature of the building and surrounding area, while setting the stage for the exciting future of the Arts Center and the entrance to the Hickory Street Arts Corridor. The artist will incorporate elements and inspiration from the Arts Center's existing mural, the building's historic architecture, and bring the past into the future, celebrating both historic tradition and artistic innovation. The mural will be RECOMMENDATION Staff recommends City Council approve the Public Art Committee's and the GDAC's recommendation to commission artist Mick Burson to create the mural on the east side of the Patterson - Appleton Arts Center. City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -364, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 4, 2016, the Public Art Committee approved recommendation of artist Mick Burson to design and paint a mural at the Patterson - Appleton Arts Center, with a vote of 8 -0. The Historic Landmark Commission approved the recommendation of artist Mick Burson on February 8, 2016, with a vote of 8 -0. FISCAL INFORMATION The design, materials, and installation of the mural at the Patterson - Appleton Arts Center will cost $2,000 and be funded from 2015 -16 HOT Funds. 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: 4.4 Provide and support outstanding leisure, cultural, and educational opportunities EXHIBITS 1. Concept drawings 2. Public Art Committee meeting minutes of February 4, 2016 3. Certificate of Appropriateness Respectfully submitted, Emerson Vorel, Director Parks and Recreation Department Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 2/26/2016 Exhibit 1 Exhibit 2 DRAFT PUBLIC ART COMMITTEE MINUTES REGULAR MEETING February 4, 2016 Members present: Jim Clement, Millie Giles, Gerri Veeder, Frank Mayhew, Mike Barrow, Guy Bruggeman, Brian Wheeler, and George Neil (arrived at 4:55 p.m.) Member absent: Glen Farris Ex Officio present: Tracy Bays- Booth, GDAC Staff present: Emerson Vorel, Janie McLeod, and John Cabrales Guests: Margaret Chalfant, Public Art Master Plan Consultant Lauren Barker, Manager, Keep Denton Beautiful Josh West, Artist Chair Clements called the meeting to order at 4 p.m. CONSIDER APPROVAL OF THE PUBLIC ART COMMITTEE MINUTES FOR: January 7, 2016. The minutes were approved by a motion made by Barrow and Mayhew seconded with a vote of 7 -0. DISCUSSION ITEMS: KDB Mural Committee. Lauren Barker, Manager of Keep Denton Beautiful (KDB), reviewed KDB's the request to have the murals on Sherman and Bell, and Bonnie Brae repainted. The Public Art Committee (PAC) agreed that the PAC would govern "temporary art" and it would not be considered a part of the City's art collection. An Informal Staff Report could be used to communicate with City Council on the recommendations from the KDB and PAC's on temporary art projects. The PAC discussed concern about not having a to -scale sketch for review before recommending approval for the large area of space. The possibility of having a template that could be followed for future temporary murals. The KDB ad hoc committee, that includes members of the PAC, will oversee the temporary art requests and bring forward for PAC's approval. KDB will partner with Community Improvement Services (CIS) to paint over any graffiti that may occur. It was suggested to use the two locations as a test case for temporary art and as the process moves forward that changes may be made. Temporary Art Policy. The PAC discussed the possible need for two policies —one for temporary art and one for murals. The committee will work on the policies. Update on Fire Station Project. Giles said that several meetings had taken place with Kirkpatrick Architecture Studio and progress is being made on the fire station project. It has been suggested to use Baldwin Metal in Dallas to produce the lettering and metal. The project will go before the Historic Landmark Commission (HLC) for their approval prior to being presented to City Council. Exhibit 2 DRAFT Proposal for Art Work at Fire Station. Giles introduced Josh West, a local artist, who showed samples of his work and expressed an interest in creating a mural for one of the fire stations. Display of Poems for Walk of Fame. McLeod showed an illustration, with the dimensions, color and angle, of the bases for the Downtown Walk of Fame poems. The dedication of the poems and the Walk of Fame is scheduled for March 29 at 4 p.m. Mural on Patterson Appleton Arts Center Building. Bays -Booth discussed the temporary art that had previously been proposed and asked that the art could now be a permanent mural. She showed illustrations of Mick Burson's artwork and suggested that it would work well with the existing outdoor art on the east side of the Center. The Patterson - Appleton Arts Center is a historical building and Bays -Booth had requested to be on the Historic Landmark Commission's agenda to get their approval on the mural. Bays -Booth said that there were plans to get sponsorships for the artist's payment. The PAC will pay $2,000 for the artists' fee rather than get sponsorships. ACTION ITEMS: 9111 Firefighter's Memorial Bell Tower at Central Fire Station. A motion was made by Barrow and seconded by Wheeler to approve the design for the 9/11 Memorial Firefighter's Bell Tower in front of Central Fire Station. The sculpture will be paid from the Capital Improvement Bond sales for safety projects. The vote was 8 -0. Purchase of Jesus Moroles Art. Wheeler made a motion to approve the purchase of the untitled fountain by Jesus Moroles, from the Red and White Gallery, at a cost of $65,000, with an additional $15,000 offered in a tax deduction. The art will be funded through the Capital Improvement Program Bonds designated for parks. The motion was seconded by Veeder and was passed with a vote of 7 -0. Giles abstained from the vote since she had been involved with the negotiations with the Gallery. KDB Mural Project. A motion was made by Bruggeman to approve the KDB mural project as a test case and was seconded by Mayhew. The motion was approved by a vote of 6 -1. Mural on Patterson Appleton Arts Center Building. A motion was made by Giles to pay Mick Burson $2,000 to illustrate a mural on the outside of the Patterson - Appleton Arts Center. Wheeler seconded the motion and it pass with a vote of 8 -0. STANDING ITEM: Public Art Master Plan. Chalfant said that her contract with the City expires the end of February and she expressed her appreciation for the support and assistance from the PAC. She shared a brief preview of the Plan. There being no further business, the meeting was adjourned 6 p.m. 4 (::('� I`r 11 DENTON February 18, 2016 Tracy Bays- Boothe Greater Denton Arts Council 400 East Hickory Street Denton, Texas 76201 Exhibit 3 221 N. ELM STREET, DENTON, TEXAS 76201 • (940)349 -8541 • (940) 349 -7707 PLANNING DIVISION, DEVELOPMENT SERVICES DEPARTMENT SUBJECT: COA16 -0003, Mural — Center of Visual Arts Dear Ms. Bays-Boothe- The Historic Landmark Commission, at their meeting on February 8, 2016, approved your application to paint a mural on the east side of the Center for Visual Arts located at 400 E. Hickory Street. In addition, this site is designated as a local historic landmark. If you have any questions, please do not hesitate to contact me at (940) 349 -7274. Sincerely, Katia Boykin, CPM Planning Supervisor Cc: Emily Loiselle, Building Inspections Division Todd Varner, Community Improvement Department Roman McAllen, Planning Division City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15- 0029b, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Continue a public hearing and consider adoption of an ordinance regarding amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new sub district and development standards for a mixed use building on approximately 1.7 acres. The subject property is generally located between Oak Street and Hickory Street and 125 feet west of Fry Street. The Planning and Zoning Commission recommends denial (6 -1). A supermajority vote by Council is required for approval. The applicant has requested that this item be postponed to next regular City Council meeting, April 5, 2016. BACKGROUND The applicant is requesting an amendment to Subchapter 35.7.5, Fry Street Overlay District that would establish a new subarea within the Fry Street Overlay District on approximately 1.7 acres between Fry Street and Avenue B. The proposed subarea would accommodate a five -story mixed use development. Based on the information provided by the applicant, the project would be 58 feet in height, include retail uses on the ground floor and multifamily uses above, a total of 83 dwelling units (300 bedrooms), and 222 off - street parking spaces. The Fry Street Overlay District is currently broken into two subareas, A and B. The U Center at Fry Street is located in subarea B which was an amendment to the Fry Street Overlay District approved by City Council in 2010 to accommodate that development's density and height. The proposed development is located within subarea A. The proposed development exceeds the maximum height and does not meet the parking requirements of subarea A. The following is a summary of development regulations as stated in DDC 35.7.5.2 and the proposed changes for Subarea B -1: Proposed Subarea A Subarea B Subarea B -1 Maximum Building Height: 3 Stories, 45' 4 Stories, 55' 5 Stories, 58' Maximum Density (units /acre): Minimum Unit Size* 72.5 88.2 Parking * Pei initted Density is based on a ininiinuin unit size allowed by applicable development regulations (height, lot coverage, landscape area, setbacks) * *Subarea A and B follow the parking requireinents of the Fry Street Overlay District. The ainendinent to City of Denton Page 1 of 3 Printed on 2/26/2016 File #: Z15- 0029b, Version: 1 Subarea B did not include a reduction in parking. Subarea B -1 is asking for units with 2 or inore bedrooins to require .75 spaces in parking whereas Subarea A and B require I space for units with 2 or inore bedrooins. No ainendinents will be made to other parking ratios in the Fry Street Overlay District. In an effort to alleviate these constraints, the applicant is requesting the creation of subarea B -1, to raise the maximum height, reduce the required parking spaces, and establish the proposed density. On February 16, 2016, the City Council open the public hearing and continued this item to March 1, 2016. At the meeting no citizens spoke regarding the proposed amendment. 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 (6 -1). The Development Review Committee recommends denial of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 16, 2016, the City Council open the public hearing and continued this item to March 1, 2016. On January 27, 2016, the Planning and Zoning Commission recommended denial of the rezoning request (6 -1). 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. Site Location 3. Zoning Map 4. Future Land Use Map 5. Draft Fry Street Overlay District Amendment City of Denton Page 2 of 3 Printed on 2/26/2016 File #: Z15- 0029b, Version: 1 6. Fry Street Overlay District Redline 7. Project Narrative 8. Public Notification Map 9. January 27, 2016 Planning and Zoning Commission Minutes Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Ron Menguita, AICP Long Range Planning Administrator City of Denton Page 3 of 3 Printed on 2/26/2016 Planning Report Z15 -0029 / Fry Street Overlay District Amendment City Council District 3 Planning & Zoning Commission January 27, 2016 REQUEST: ..Title Hold a public hearing and consider making a recommendation to City Council regarding amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new subdistrict and development standards for a mixed use building on approximately 1.7 acres. (Z15 -0029, Fry Street Overlay District Amendment, Sophie Huemer) ..Body OWNER: 902 Avenue C LLC APPLICANT: Rob Baldwin, Baldwin Associates LLC BACKGROUND: The applicant is requesting an amendment to Subchapter 35.7.5, Fry Street Overlay District that would establish a new subarea within the Fry Street Overlay District on approximately 1.7 acres between Fry Street and Avenue B. The proposed subarea would accommodate a five -story mixed use development. Based on the information provided by the applicant, the project would be 58 feet in height, include retail uses on the ground floor and multifamily uses above, a total of 83 dwelling units (300 bedrooms), and 222 off - street parking spaces. The Fry Street Overlay District is currently broken into two subareas, A and B. The U Center at Fry Street is located in subarea B which was an amendment to the Fry Street Overlay District approved by City Council in 2010 to accommodate that development's density and height. The proposed development is located within subarea A. The proposed development exceeds the maximum height and does not meet the parking requirements of subarea A. The following is a summary of development regulations as stated in DDC 35.7.5.2 and the proposed changes for Subarea B -l: Proposed Subarea A Subarea B Subarea B -1 Maximum Building Height: 3 Stories, 45' 4 Stories, 55' 5 Stories, 58' Maximum Density (units /acre): Minimum Unit Size* 72.5 88.2 Parking * Permitted Density is based on a minimum unit size allowed by applicable development regulations (height, lot coverage, landscape area, setbacks) * *Subarea A and B follow the parking requirements of the Fry Street Overlay District. The amendment to Subarea B did not include a reduction in parking. Subarea B -1 is asking for units with 2 or more bedrooms to require .75 spaces in parking whereas Subarea A and B require I space for units with 2 or more bedrooms. No amendments will be made to other parking ratios in the Fry Street Overlay District. In an effort to alleviate these constraints, the applicant is requesting the creation of subarea B -1, to raise the maximum height, reduce the required parking spaces, and establish the proposed density. SITE DATA: The proposed development is comprised of eight parcels totaling 1.7 acres with approximately 220 feet of frontage on W. Oak Street and approximately 280 feet of frontage on W. Hickory Street. The subject properties are 130 feet west of Fry Street and 175 feet east of Avenue B. USE OF PROPERTY UNDER CURRENT ZONING: The proposed development is located in the Fry Street Overlay District, Subarea A, which has a base zoning district of Downtown Commercial - General (DC -G), one of four districts that comprise the Downtown University Core. The purpose of the Downtown University Core zoning districts are to encourage mixed use developments and pedestrian friendly places. Within the Downtown University Core zoning districts, are several Special Purpose Overlay Districts where "specific lands and structures, by virtue of their type or location, have characteristics which are distinct from lands and structures outside such special districts" (DDC 35.7.1). Special Purpose Overlay Districts located in the Downtown University Core include the following districts. • Fry Street Overlay District • West Oak Area Historic District • Oak Hickory Historic District The Fry Street Overlay District's purpose is "to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off - street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density" (DDC 35.7.5.2). Multifamily residential uses are permitted in the Fry Street Overlay District however, the density and height of the buildings is further restricted by the overlay. SURROUNDING ZONING AND LAND USES: North: Property to the North across W. Oak Street is located in a Downtown Residential -2 (DR -2) District and is developed with commercial parking and multi - family residential uses. East: Property to the East is located in a Downtown Commercial - General (DC -G) District and is developed with retail, restaurants, and a church. South: Property to the South across W. Hickory Street is located in a Downtown Commercial - General (DC -G) District and is developed with an institutional use, the University of North Texas campus. West: Property to the West is located in a Downtown Commercial- General (DC -G) District and is developed with a restaurant, retail, and quick vehicle servicing uses. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: DC -G is one of the most permissive zoning districts within the Downtown University Core and encourages a mix of uses. The Fry Street Overlay District does not restrict any uses, but does provide the following changes to applicable standards. • A relaxation of parking requirements for commercial uses Standards that encourage both vertical and horizontal mixed use developments Restrictions on the height and density of multifamily The area has primarily developed with commercial uses and has multifamily developments to the east and north. The multifamily to the north lies within a Downtown Residential -2 (DR -2) District, where up to 30 dwelling units per acre is permitted. Subarea B's density permits 72 units per acre and represents the current density provided for in the U Center student housing development. The proposed development would be the densest development in the Fry Street Overlay District at 88 units per acre (where one bedroom is equal to half a dwelling unit). COMPREHENSIVE PLAN: The future land use designation for the subject properties per Denton Plan 2030 is Neighborhood/University Compatibility. This land use designation applies to residential and commercial areas adjacent to the University of North Texas (UNT) and Texas Women's University (TWU). Denton Plan 2030 acknowledges that increased enrollment at both institutions increases the need for student housing (Denton Plan 2030, pg. 195). The purpose of the Neighborhood/University Compatibility designation is to ensure that additional university facilities and housing is of compatible form and density to serve both the university and the abutting single family neighborhoods. To accomplish compatibility, developments of the Neighborhood/University Compatibility designation should: • Provide a gradual transition in scale, use, character, and intensity between university and neighborhoods; • Encourage uses that are in close proximity to one another to encourage walking and bicycling; • Maintain the character of the area by making sure that new development is sensitive to the surrounding built and natural context in scale and form, and • Adequately address parking needs and mitigate impact to adjacent neighborhoods. Additionally, the Denton Plan 2030 encourages the use of small area plans for the Neighborhood/University Compatibility designation to regulate development standards; guide zoning and regulatory adjustments associated with overlays; and to ensure compatibility of redevelopment (Denton Plan 2030, pg. 195). CONSIDERATIONS: 1. The applicant is requesting to create a new subarea within the Fry Street Overlay District on approximately 1.7 acres between Fry Street and Avenue B. The proposed subarea would accommodate a five -story mixed use development with associated development criteria: Proposed Subarea B -1 Maximum Building Height: 5 Stories, 58' Maximum Density (units /acre): 88.2 Parking * Residential Units with 2 or more bedrooms require .75 parking spaces 2. The proposed development would be the densest development in the Fry Street Overlay District at 88 units per acre (where one bedroom is equal to half a dwelling unit). Subarea B's density is 72 units per acre. The multifamily residential use is a compatible land use with the surrounding area, however, the density and height are not compatible. 3. The total parking required is 330 spaces for all residential and retail uses. The current site plan reflects 220 spaces. This reflects a 110 space deficit and the site plan reflects a ratio of .73 spaces per bedroom. Parking for the Fry Street Overlay District parking regulations are written so that there is adequate parking for residents and a relaxed parking standard for retail (1 space per 400 square feet as compared to 1 space per 300 square feet for general retail and 1 space per 100 square feet for restaurants in DDC 35.14). The first amendment to the Fry Street Overlay District was able to comply with all parking standards of the District. While less parking does align with the goals of creating a more walkable and pedestrian- minded environment, reductions in the requirement on a site -by site occurrence in not a comprehensive approach to analyzing the impact of parking reduction on the Fry Street Overlay District. 4. A Traffic Impact Analysis (TIA) is required for this project to determine if development will negatively impact traffic on surrounding streets. The Developer has not yet submitted a TIA for staff review, and therefore, the proposed development's impact on traffic is presently unknown. The site plan must also meet all requirements for solid waste which has not been reflected on the site plan. 5. The fire department's current status remains "Return for Review" because the applicant has been unable to verify aerial apparatus access to the building. The fire department requires aerial apparatus fire access for any buildings over 30 feet in height. Aerial apparatus access requires a 26 foot fire lane positioned 15 to 30 clear feet alongside the building. This site needs to be redesigned to allow for the aerial access. Currently, neither Oak nor Hickory Street would be allowable to use as aerial access since there is a large volume of traffic on both streets as well street parking. 6. While the development does increase the stock of student housing, the proposed amendment and associated development conditions are not consistent with the Denton Plan 2030 for the following reasons: • The development's inability to adequately address parking needs of the development, potentially impacting the surrounding neighborhoods; • The potential impact of the density on the surrounding street infrastructure; and • The inconsistency of form and character with the surrounding area which is a primary goal of the Neighborhood/University Compatibility Designation and the Denton Plan 2030. 7. A Small Area Plan for the Fry Street area was adopted in 1999. However, few of the goals of the plan have been implemented. On January 26, 2016, Planning presented, during Work Session to the City Council, the importance of Small Area Planning and the intent to begin the process of creating and implementing a new Fry Street Small area plan in accordance with the goals of the Denton Plan 2030. The plan would take into consideration the community's vision for the area, need for adequate transportation and parking, infrastructure, and architectural compatibility of the Neighborhood/University Compatibility area to better facilitate redevelopment and reinvestment development projects that meet the needs of the university and the adjacent neighborhoods. Staff has concerns about continuous amendments to the Fry Street Overlay District standards without fully understanding the impact of higher density /intensity projects on: • Infrastructure, • Transportation and Parking network, • Neighborhood compatibility. 8. Per Section 35.7.3. of the Denton Development Code, Special Purpose Overlay Districts are established to protect and enhance certain specific lands and structures which, by virtue of their type or location, have characteristics which are distinct from lands and structures outside such special districts. Changes to and Overlay District must enhance or conform to the purpose of the Overlay District's goals and objectives. As submitted, the proposed development only further amends the district to conform to a specific development proposal without comprehensive analysis of impact to the adjacent neighborhoods. 9. Two neighborhood meetings were held. The first neighborhood meeting requested by a City Council representative and the second was hosted by the developer. The first was held on September 29, 2015. The second was held on November 12, 2015. The neighborhood expressed a level of comfort with Subarea A of Fry Street Overlay District as written. Concerns raised by attendants of the meetings included increased traffic along Oak and Hickory, increased parking in single family neighborhoods adjacent to the project, and lack of a shade study for height of the building. STAFF RECOMMENDATION: Staff recommends denial of the requested amendment as it further compromises the Fry Street Overlay District standards. 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, 27 notices were sent to property owners within 200 feet of the subject property, 71 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. Two neighborhood meetings were held. The first was held on September 29, 2015. The second was held on November 12, 2015. PROJECT TIMELINE: Application Received: 1st Submittal Sent to DRC Members: Comments Released to Applicant: DRC Meeting with Staff- 2 d Submittal Sent to DRC Members: Business Days under DRC Review: Business Day out to Applicant: Total Business Days: 12/02/2015 12/02/2015 12/18/2015 12/31/2015 Pending 10 Pending Second Submittal 10 EXHIBITS: • Site Location • Zoning Map • Future Land Use Map • Draft Fry Street Overlay District Amendment • Fry Street Overlay District Redline • Notification Map • Project Narrative Respectfully submitted: Beverly Zendt Development Review Committee Administrator Prepared by: Sophie Huemer Associate Planner h � Nw Z15 -0029 Site Location /Aerial Map 11 o N 4J ,h 1 o oo zoo SITE ' s Parcels DENTON Development SerWces • GIS Roads Date: 12/7/2015 he City of Denton has prepared maps for departmental use. These are not offcial 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. Z15 -0029 Site Location / Zoning Map a t t a. � r r i r f i f / i u i 11 � i J / / f � � f ,f / r r � r / r r i f � f f i ff 1 f i i l � 1 � 1 1 1 1 1 r 1 f r1 f f f f / / i f � , rrii� � / � l i � l i , I 1 1 I f f i1 i �r r. l r r r� .......................... r r r r r r r r r 1 0 r r r �� � r�rrtrrrrrr /� r r� r r, / G t / � � r i i r i � r i � r � r r / J 1 r / r 1 r � / r 1 / /1 r r. MEN � r i / r r / r i rr rr �� r � r 1 �t 1 1 1 � 1 11111�11� / �1�111111111r1, l i r 1 r f r � 1 1 / f f r 1 .r / l mill l _ � 1 > � L l l � � �� � sir r l 1 1 r l a � I r i �J JJ DR —2 1 rrr rrrrrrrrr i i i 1 I r i / i / f / rrrrrrrrrrrrr rrr r r l r r i f f 1 / f i / �� / i / / � � 1111111111111. SITE � DC -G DR -2 W. N E,'' s zooeer Parcels DC -N DENON Roads �� -- s:� ,l Development ServIices • GIIS Date: 12/7/2015 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[he City of Denton has prepared maps for departmental use. These are not offcial 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 or the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15 -0029 Site Location Future Land Use Map p, 10 ✓ .a ry "M 'N"N", M 'v 0, r' J "I'll" . . . . . . . ... . r. "M V ✓ is t SITE Future Land Use W, E I o 2GO reer Parcels Low Residential Neighborhood / University Compatibility Area DENTON Roads Government / Institutional Development SerWces • GIS Date: 12/7/2015 City of Denton has prepared maps for departmental us,- These are not official maps of the City of Denton and should not be used for legal, engineering or surveying pu,p...s but rather for ,Ie,,n,, purposes. These maps are the property of the City 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 [h', the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. 35.7.5 Fry Street Overlay District 35.7.5.1 Fry Street District Established There is hereby established a special zoning overlay district to be known as the Fry Street District. The Fry Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberry Street to the south, and Hickory to the southwest. All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry Street District regulations as provided for in section 35.7.5, and its subsections. The district is further divided into subareas A and B, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. 35.7.5.2 Purpose and Intent The purpose and intent of this overlay district is to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off -street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density. Legend 4p Fly 5trset —111y Oi-d II A 91hl — ti Exhibit 35.7.5.A. Fry Street Overly District Subareas � ur]r�� 35.7.5.3 Off - Street Parking The provisions of Subchapter 14 shall apply to the Fry Street District, except as follows: A. Remote parking. Remote off -street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off -street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non - residential, including restaurant, retail, private club, on- premises sale of beer and /or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi - family residential — Subarea A only. Multi - family residential development in subarea A shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one - fourth (1.25) space 2. Units with 1 bedroom: One and one -half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom D. Multi - family residential — Subarea B -1 only. Multi - family residential development in subarea B -1 shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one - fourth (1.25) spaces 2. Units with 1 bedroom: One and one -half (1.50) space 3. Units with 2 or more bedrooms: 0.75 space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom 35.7.5.4 Area and Height Requirements The provisions of Subchapter 5 shall apply to the Fry Street Overlay District, except as modified for each subarea below: A. Minimum lot area — Subareas A and B -1 only: A. Residential uses: Six thousand (6,000) square feet. B. Non - residential uses: No minimum lot area. C. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth — Subareas A and B -1 only: 1. Residential uses: One hundred (100) feet. C. Minimum lot width — Subareas A and B -1 only: A. Residential uses: Sixty (60) feet. D. Maximum building coverage — Subareas A and B -1 only: 1. Residential uses: 50% 2. Non - residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor / Area Ratio — Subareas A and B -1 only: 1. Residential uses: 3: 1 2. Non - Residential uses: 2: 1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure F. Required Yards — Subareas A and B -1 only: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non - Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations. 1. Subarea A only. No structure may exceed 3 stories. Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. 2. Subarea B only. No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. 3. Subarea B -1 only. No habitable structure may exceed 5 stories, with an overall building height of 58 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential densities. 1. Subarea A only. The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: a. Efficiency: 1,000 square feet b. One bedroom apartment: 1,200 square feet c. Each additional bedroom per apartment: 300 square feet 2. Subarea B only. The maximum residential density of subarea B shall be 72.5 units per acre, where one (1) bedroom is equivalent to one -half (0.5) of a residential unit. 3. Subarea B -1 only. The maximum residential density of subarea B shall be 88.2 units per acre, where one (1) bedroom is equivalent to one -half (0.5) of a residential unit. L Parking Structures — Subareas B and B -1 only. No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right -of -way. 35.7.5.5 Multi - Family Uses Multi - family residential uses shall be allowed within any zoning district within the Fry Street District. 35.7.5.6 Solid Waste Containers A. Location. Solid waste containers in the Fry Street District shall be located off the street in centralized locations, to the rear of buildings served by each container, and shall be screened with devices made of masonry or wood. B. Consolidation. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not served by residential solid waste collection service, shall contract with the City for shared or consolidated commercial solid waste collection and disposal services, unless otherwise required by ordinance. C. Subarea B shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. 35.7.5.7 Sign Regulations The provisions of Subchapter 15 of the Denton Development Code, as hereafter amended, superseded or replaced, shall apply, except as modified for each subarea below: A. Prohibited signs. Ground and monument signs are prohibited within Subarea A, but may be permitted in Subarea B, consistent with the limitations of 35.7.5.7.B.2, below. B. Allowed signs 1. Wall signs. Wall signs in the Fry Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea A of the Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subarea B may be mounted perpendicular to building faces, provided they do not encroach into public rights -of -way. b. Residential — Subarea A only. Signs associated with residential uses in subarea A of the Fry Street District Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulatory purposes. C. Mixed -uses that include residential — Subarea A only. Signs associated with mixed uses in subarea A of the Fry Street District shall be allowed only on those stories of a building that include non - residential uses. 2. Monument signs — Subareas B and B -1 only. Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.B) and the site plan for Subarea B -1 (Exhibit 35.7.5.C). I . .s 8 I5' .x • n LL ® m li T � Nk $ i m� o yy tl ° Y meanm ryc..sn C o W%TV"', 11 m r�wAV, ltl Exhibit 35.7.5.13. Subarea B Site Plan �Ir2 SCALE: 1 "�P' k24t36 °SHEET] UNT EOR' zu1545T UNI'P TABtklARNiN bSTORV UNIT.NIE UNi—E NET AREAI5F U—UNT GEGYUNT PERCET— T—ARFA IER-E- I(v1:7Y16 UI 2b,11, }r 85� 18 11% 773 11"5 61 .a5rrm,1 111t, 11 —_ n _ 1116 _ %,n50 Y"N DI 4Y 14tt .... OG 411r14GL 1472 4': Ij'vJ 17 Itc+ G'& .... v2W 29'16 6114 ..1 �E,0111 1216 10TAB 83 300 300N 11317 UNYP AVERAGE NU SF'. NF !tr „SeM +.'Eri ) A, pE�:IW .: ".FY ,t '� E F.'A,AF .L Yr MLt fW'Ht 1,941 FHMK Wn�.ASNA Etl(.OkM 11 s.r'L: WEA NUf PROJECTOATA UNYP AVERAGE WE9' BF'. ACYifAL',E'. ..INGO55 AF'EA 91JMifpC(t PA{MIN2i IOTA HN NU 9Y+n4au 1.]d1 I.Yp ], 4Sp 4 L'[Y a).'Y4. 9.F. ACRFS' S.h NPlrw29 FiI�ACMS 6RACESOBE[fi TOTAL APARTMENTS GROSS SF: 150091 TOTAL GARAGE GROSS SF: 77670 Exhibit 35.7.5.0 — Subarea B -1 Site Plan A2O1- 06 ARCHITECTURAL SITE PLAN 3. Design — Subareas B and B -1 only. Signs in Subarea B shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.D and the conceptual designs for Subarea B -1 (Exhibit 35.7.5.E). Exhibit 35.7.5.D. Subarea B Conceptual Sign Renderings ' (�r 1, f mean III III III III III III III 1111111 Uj I, Exhibit 35.7.5.1). Subarea B Conceptual Sign Renderings — Continued HCKORY STREET MUMED E WIDN I (MOM FU M M— ORWE 1 11' 2 11e,jl -,, ;- I., rvn7Rar F,fl �nd v- 1, ii-11 . , gill LINT STUDENT HOUSING iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillI EDR HUMPHREYS & PARTNERS ARCHITECTS L.P. Oct 16, 2015 DENTONJX HPA#15457 rum, °nn 1 11 111m11i 11 11 i ri. ul ffroo, . Irl] ll 11111!1 11 1, T u I 11 1 1! 11, Ti W1 7 Murcia F1 31-11111 4 ri T Tl 1 m H Mom mmwmmm non LINT STUDENT HOUSING iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillI EDR HUMPHREYS & PARTNERS ARCHITECTS L.P. Oct 16, 2015 DENTONJX HPA#15457 milim poll UNT STUDENT HOUSING HUMMUMMUN EDR HUMPHREYS & PARTNERS ARCHITECTS L P Oct 16, 2015 DENTONJX HPA#15457 rum, °nn 1 11 111m11i 11 11 i ri. ul 11111111 11 11 11 in 11 31mill! 11 . Irl] ll 11111!1 11 1, T u I 11 1 1! 11, Ti W1 7 Murcia F1 31-11111 4 ri T Tl 1 m H 711, T FINTI -n I I m rill", mill milim poll UNT STUDENT HOUSING HUMMUMMUN EDR HUMPHREYS & PARTNERS ARCHITECTS L P Oct 16, 2015 DENTONJX HPA#15457 35.7.5.8. Landscaping Requirements for Subarea B only: A. Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.7.5.F. Q AN Exhibit 35.7.5.F. Subarea B Landscaping Plan 35.7.5.9. Site Plan Requirements for Subareas B and B -1 only: Construction shall substantially conform to the site plan shown at Exhibit 35.7.5.B and the site plan for Subarea B -1 (Exhibit 35.7.5.C). 35.7.5.10. Architectural Standards for Subareas B and B -1 only: The following requirements apply to Subarea B, in addition to any other requirements provided by code or ordinance: A. Residential Units fronting Welch Street shall incorporate sloped roof pitches. B. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.E.), including but not limited to: 1. Store front design 2. Awnings 3. Stoops on the street level 4. Accent bay windows 5. Cornice details 6. Brick facades with flat roof lines 7. The incorporation of a bench and street tree in front of the building 8. Arch details 9. Shutters. i ARCH DETAIL BRICK FACADE STORE FRONT DETAIL AWNING DETAIL RESIDENTIAL Wd SLOPED ROOF TO THE EAST OF WELCH SHUTTERS IMAGE BOARD Exhibit 35.7.5.E. Subarea B Architectural Image Board C. Parking Structures will be provided with a facade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right -of -way. 35.7.5.11. Minor Amendments Upon request of the applicant, the Director of Planning and Development, or his designee, may authorize minor amendments to the site or landscape plan so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved site or landscape plans. For purposes of this provision, a "substantial change" shall mean a change which will increase the number of proposed dwelling units or bedrooms, height, or number of stories; or decrease the amount of required off -street parking spaces. The Director of Planning and Development, or his designee, shall make such authorization only in writing and such document shall be placed in the ordinance file governing the specific plan. 35.7.5.12. Conflict with Other Regulations To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control. All provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect. Exhibit B 35.7.5 Fry Street Overlay District 35.7.5.1 Fry Street District Established There is hereby established a special zoning overlay district to be known as the Fry Street District. The Fry Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberry Street to the south, and Hickory to the southwest. All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry Street District regulations as provided for in section 35.7.5, and its subsections. The district is further divided into subareas A and B, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. 35.7.5.2 Purpose and Intent The purpose and intent of this overlay district is to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off -street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density. J' W , aA Exhibit 35.7.5.A. Fry Street Overly District Subareas S r: lh - p aA 35.7.5.3 Off - Street Parking The provisions of Subchapter 14 shall apply to the Fry Street District, except as follows: A. Remote parking. Remote off -street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off -street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non - residential, including restaurant, retail, private club, on- premises sale of beer and /or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi - family residential — Subarea A only. Multi - family residential development in subarea A shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one - fourth (1.25) space 2. Units with 1 bedroom: One and one -half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom D. Multi - family residential — Subarea B -1 only. Multi- family residential development in subarea B -1 shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one - fourth (1.25, spaces 2. Units with 1 bedroom: One at-id one -half (1.50, space 3. Units with 2 or more bedrooms: 0.75 space for each bedroom 4. Fraternities, sororities, boardinL, and lod6nL, houses. One (1) space for each bedroom 35.7.5.4 Area and Height Requirements The provisions of Subchapter 5 shall apply to the Fry Street Overlay District, except as modified for each subarea below: A. Minimum lot area — Subareas A and B -1 only: A. Residential uses: Six thousand (6,000) square feet. B. Non - residential uses: No minimum lot area. C. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth — qtr -e Subareas A and B -1 only 1. Residential uses: One hundred (100) feet. C. Minimum lot width — qtr- e�tSubareas A and B -1 only: A. Residential uses: Sixty (60) feet. D. Maximum building coverage — Subareas A and B -1 only: 1. Residential uses: 50% 2. Non - residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor/ Area Ratio — Subareas A and B -1 only: 1. Residential uses: 3 :1 2. Non - Residential uses: 2 :1 3. Mixed -uses that include residential: 3 : -1, provided that residential uses shall comprise the top story of any structure F. Required Yards — -St2- Subareas A and B -1 only: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non - Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations. 1. Subarea A only. No structure may exceed 3 stories. Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. 2. Subarea B only. No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. 3. Subarea B -1 otnlsr. No habitable structure main exceed 5 stories, with an overall building height of 58 feet, including VAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential densities. 1. Subarea A only. The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: a. Efficiency: 1,000 square feet b. One bedroom apartment: 1,200 square feet c. Each additional bedroom per apartment: 300 square feet 2. Subarea B only. The maximum residential density of subarea B shall be 72.5 units per acre, where one (1) bedroom is equivalent to one -half (0.5) of a residential unit. 3. Subarea B -1 only. The maximum residential density of subarea B shall be 88.2 units Per acre, where one 1 bedroom is equivalent to one -half (0.5) of a residential unit. L Parking Structures — qtr -e Subareas B and B -1 only. No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right -of -way. 35.7.5.5 Multi - Family Uses Multi - family residential uses shall be allowed within any zoning district within the Fry Street District. 35.7.5.6 Solid Waste Containers A. Location. Solid waste containers in the Fry Street District shall be located off the street in centralized locations, to the rear of buildings served by each container, and shall be screened with devices made of masonry or wood. B. Consolidation. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not served by residential solid waste collection service, shall contract with the City for shared or consolidated commercial solid waste collection and disposal services, unless otherwise required by ordinance. C. Subarea B shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. 35.7.5.7 Sign Regulations The provisions of Subchapter 15 of the Denton Development Code, as hereafter amended, superseded or replaced, shall apply, except as modified for each subarea below: A. Prohibited signs. Ground and monument signs are prohibited within Subarea A, but may be permitted in Subarea B, consistent with the limitations of 35.7.5.7.B.2, below. B. Allowed signs 1. Wall signs. Wall signs in the Fry Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea A of the Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subarea B may be mounted perpendicular to building faces, provided they do not encroach into public rights -of -way. b. Residential – Subarea A only. Signs associated with residential uses in subarea A of the Fry Street District Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulatory purposes. C. Mixed -uses that include residential – Subarea A only. Signs associated with mixed uses in subarea A of the Fry Street District shall be allowed only on those stories of a building that include non - residential uses. 2. Monument signs – qtr— Subareas B and B -1 only. Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.B) and the site plan for Subarea B -1 (Exhibit 35.7.5.C). . .s 8 I5' .x rwrr ... I v� �� �� "' "oc n.w.�S � «• ,xrcue� • n LL ® m li (�, T � __.. ......... .. m� P yy tl ° Y meanm ryc..sn C o W%TV"', RM E1 m r�wAV, ltl a Exhibit 35.7.5.13. Subarea B Site Plan 1+ SG4LE Y " =3P' f24 "z3E "SHEEfa p 30^ 61 120' UNI EDP 201WV UMG TABULkTU34- 5STORY ,"Y"116 WAAIE UM PE NETAEEA,'F) 131 2t 12tra DMT7UNF lli0 p ED�SUNT 0 PE NTADE t 96 Tm AREA %DREa DUD Ti :t51T. 1,111 14 42 1196 MAW uY 4m1wo 1 aax n; v1 saw, cY 1�, _. 02 Vbrlavi _ L5 ^]D 17 G!Y 211^6 _ 2E,T10 r'sw TOTALS 83 _ 30D -- "WA --111351 -- UNIT AVERAGE NET BE 1341 PROJECTDATA UNIT AVERAGE WET SF t141 1.1N Sr. h^REFr I,NlIT .... .... RF..NTY: CLW311N1 nW£A cnw iNc 4flfl ],.1 &ACRE SF 81AWFaG'k VAdiItYNJ DUE. 1-1— PO'r.E— INU EPnUL'E "1 111 W: Pti fiVaC &F 5PA- E'PA4k5 5PACE&/BED5 TOTAL APARTMENTS GROSS SF: 150091 TOTAL GARAGE GROSS SF: 77670 A201- 06 ARCHITECTURAL SITE PLAN 3. Design — S ,Subareas B and B -1 only. Signs in Subarea B shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.ED- and the conceptual designs for Subarea B- 1 (Exhibit 35.7.5.E). Exhibit 35.7.5.GD. Subarea B Conceptual Sign Renderings ' (�r 1, f mean III III III III III III III 1111111 Uj I, Exhibit 35.7.5. -G®. Subarea B Conceptual Sign Renderings — Continued HCKORY STREET MUMED E WIDN I (MOM FU M M— ORWE 1 11' 2 11e,jl -,, ;- I., rvn7Rar F,fl �nd v- mim UFT= Fm 11 m UNT STUDENT HOUSING EDR HUMPHREYS & PARTNERS ARCHITECTS L.P. Oct 18, 2015 DENTONJX HPA#15457 1.1m =lz ul a mina UNT STUDENT HOUSING EDR HUMPHREYS & PARTNERS ARCHITECTS L.P. Oct 16, 2015 DENTONTX HPA#15457 35.7.5.8. Landscaping Requirements for Subarea B only: A. Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.7.5.44F. pSM Exhibit 35.7.5. _. Subarea B Landscaping Plan A. Residential Units fronting Welch Street shall incorporate sloped roof pitches. B. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.E.), including but not limited to: 1. Store front design 2. Awnings 3. Stoops on the street level 4. Accent bay windows 5. Cornice details 6. Brick facades with flat roof lines 7. The incorporation of a bench and street tree in front of the building 8. Arch details 9. Shutters. CORNICE DETAIL m� RESIDENTIAL OVER RETAIL IDENTITY WITH DIFFERENT COLOR PAVED ST. WATREE & BENCH STOOPS ON STREET ARCH DETAIL BRICK FACADE STORE FRONT DETAIL AWNING DETAIL RESIDENTIAL W.I SLOPED ROOF TO THE EAST OF WELCH SHUTTERS IMAGE BOARD Exhibit 35.7.5.E. Subarea B Architectural Image Board C. Parking Structures will be provided with a facade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right -of -way. 35.7.5.11. Minor Amendments Upon request of the applicant, the Director of Planning and Development, or his designee, may authorize minor amendments to the site or landscape plan so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved site or landscape plans. For purposes of this provision, a "substantial change" shall mean a change which will increase the number of proposed dwelling units or bedrooms, height, or number of stories; or decrease the amount of required off -street parking spaces. The Director of Planning and Development, or his designee, shall make such authorization only in writing and such document shall be placed in the ordinance file governing the specific plan. 35.7.5.12. Conflict with Other Regulations To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control. All provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect. Narrative Fry Street Overlay District Proposed Amendment for EDR - UNT Project The purpose of this amendment is to create a new 1.70 -acre subdistrict in the Fry Street Overlay (Subdistrict B -1) to allow for the construction of a new mixed -use development. The proposed mixed -use project will have retail uses on the ground floor and multifamily uses above. A total of 83 dwelling units are proposed for the property. There will be a total of 300 bedrooms and 222 off - street parking spaces. The proposal has two main components: 1. Increase the maximum permitted height to 58 -feet; and 2. Reduce the required off - street parking for the multifamily use to 0.73 parking spaces for each bedroom. The property is currently developed with commercial uses and surrounded by commercial uses to the east and west. University campus uses are located south of Hickory Street. Mixed density residential uses are also located to the north, east, and west. The property is located within a Neighborhood /University Compatibility Area on the Future Land Use Map. The proposed mixed -use development complies with the Denton Plan 2030 because it is a compact development with a mix of uses, provides additional housing choices, and compliments the thriving university area. We believe that the proposed off - street parking requirements are adequate and appropriate for this site based on the project location, our experience with other projects EDR has developed, owned and operated and the driving habits of the expected tenants at the project. The Denton Unified Development Code clearly states that the purposes of the off - street parking standards are to ensure the new developments provide "adequate and reasonable" parking to support the use. The Unified Development Code goes further to state that where a literal interpretation of the off - street parking standards would not clearly achieve the purpose and intent of the standards, the developer can seek a variance to the standards. In this case, we are convinced that a literal interpretation of the off - street parking standards does not constitute the current market demand for parking for collegiate housing nor does it further best planning practices. The American Planning Association recognizes that a project's proximity to a major use has an impact on the amount of parking required. In this case, our location directly across the street from the University of North Texas, clearly suggests that our tenant will not need an automobile to attend classes or visit university supporting retail and commercial uses in the area. The Walk Score rating for this address is high which means that the people living in this area do not have to rely on private automobiles. The general purpose of off - street parking regulations is to make sure that there is adequate parking so the parking demanded by a certain use is not forced onto adjacent properties or into residential neighborhoods. Our research and experience of similarly situated projects clearly demonstrates that what we are proposing meets the market demand for the proposed use at the proposed location. EDR is in the business of providing housing in proximity to major universities. Their experience is that providing one parking space per bedroom is not warranted and this experience is based on their projects across the country and in universities in Texas. At their project at Texas State University, they are providing 69% of the standard parking. This project shares similar characteristics to the proposed project. Both these projects are similar to the proposed project and there is no reason to assume that the tenant characteristics would be different. In Denton, the Menter at Fry provides all the parking as required by the Denton Development Code and their management has told us that the top level of the parking garage is normally empty. At the 33 Degrees North project, they provide 70% of the required parking and our conversations with their management reflect that this is adequate to meet their needs. If they cannot serve their tenants parking needs, they will not be able to lease their units and the project would not be successful. This project is well designed and throughly reflective of the current best planning practices today. We are in an excellent location that truly allows for our tenants to walk, bike or take public transportation for their needs. We are confident that the proposed design is reasonable and adequately address the parking needs for the project. I Minutes 2 Planning and Zoning Commission 3 January 27, 2016 4 5 After determining that a quorum was present, the Planning and Zoning Commission of the City of 6 Denton, Texas convened in a Work Session on Wednesday, January 27, 2016 at 5:00 p.m. in 7 the City Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at 8 which the following items were considered: 9 10 PRESENT: Chair Jim Strange, Commissioners: Gerard Hudspeth, Amber Briggle, 11 Devin Taylor, Larry Beck, Andrew Rozell and Frank Dudowicz. 12 13 ABSENT: None. 14 15 STAFF: Athena Green, Earl Escobar, Shandrian Jarvis, Sophie Huemer, Ron 16 Menguita, Beverly Zendt, Julie Anderson, Brent Heath, Mike Bell, Ross 17 Culbertson, Munal Mauladad, and Jennifer DeCurtis. 18 19 WORK SESSION 20 1. Clarification of agenda items listed on the agenda for this meeting, and discussion of issues not briefed in the written backup materials. 21 22 Chair Strange called the Work Session to order at 5:00 p.m. Munal Mauladad, Deputy Director of 23 Development Services, questioned if staff would need to present the plat items. There was no 24 discussion on the plat items, staff presented the Public Hearing Items. 25 26 Sophie Huemer, Associate Planner, provided the backup materials for Public Hearing Item 4A. 27 Huemer provided the location map and zoning map. She stated the Fry Street Overlay District was 28 created in 2000 to preserve the unique history and character of the area, known as Subarea A. The 29 overlay district was amended in 2010 to accommodate a mixed -use development, known as 30 Subarea B. The applicant is proposing to further amend the Fry Street Overlay District, creating 31 Subarea B -1 to accommodate for multi - family and retail. 32 33 Huemer stated that Subarea A and B require one (1) parking space for units with two (2) or more 34 bedrooms. Subarea B -1 is asking for units with two (2) or more bedrooms to require .75 spaces. 35 There will be no amendments made to other parking ratios in the Fry Street Overlay District. 36 37 Subarea A allows for 45 feet, two -story units, and the density is based on the minimum unit size. 38 Subarea B allows for 55 feet, four -story units, with 72.5 units /acre as the density. The proposed 39 Subarea B -1, is being requested is 58 feet, with five -story units, 88.2 units /acre as the density, and 40 a reduction for units with two (2) or more bedrooms at a .75 parking spaces per bedroom. 41 42 Commissioner Beck questioned if units are considered the bedrooms or the entire apartment. 43 Huemer stated one bedroom is equal to one half unit. Commissioner Beck questioned if two 44 bedrooms would be considered a unit. Huemer confirmed. 1 2 Huemer provided the Future Land Use map and Denton Plan 2030 Land Use details. Staff sent out 3 27 public notices to property owners within 200 feet of the subject site, and 71 courtesy notices to 4 property owners within 500 feet of the subject site. At this time staff has not received any returned 5 responses. Huemer stated staff recommends denial of this request based on the considerations 6 presented and as the requested amendment further compromise the Fry Street Overlay District 7 Standards. 8 9 Huemer stated there are outstanding comments from the Fire Department in regards to aerial 10 apparatus access to the building. Commissioner Taylor questioned if the concern is the access not 11 the equipment. Huemer confirmed. 12 13 Commissioner Beck questioned why that information is not currently available. Huemer stated 14 based on the timing, the full submittal was done in December 2015. The status on the item is 15 "Returned for Review" because there are still outstanding comments. The applicant does have the 16 right to proceed with their application despite pending comments. Mauladad stated the request per 17 the applicant is based on their amendments and contingent of the Traffic Impact Analysis and other 18 departmental comments. 19 20 Chair Strange stated he doesn't recall other projects coming before this Commission that have not 21 been a complete submittal. He questioned if there is a reason for the fast track process. Mauladad 22 stated when the applicant submitted their intent was to determine if they could secure approval of 23 these amendments and it was during the review process that site related comments were identified. 24 Commissioner Taylor questioned what infrastructure is a concern. Huemer stated the sewer, she 25 discussed the potential need for Hickory Street to upsize the current lines. 26 27 Chair Strange questioned if it is a capacity issue or the age of the existing infrastructure. Earl 28 Escobar, Engineering Development Review Manager, stated the concern is more of a capacity 29 issue. This is based on the intensity of the use and the size of the infrastructure on Hickory Street. 30 31 Commissioner Rozell questioned if the two main issues are the height of the proposed structure 32 and the parking requirements. The proposal is three (3) feet taller than what is allowed. 33 34 Commissioner Rozell requested the history of Subarea B. Huemer stated in 2010, an application 35 came forward similar to this request for a mixed -used multi - family development; which is the 36 Sterling Fry Street project located east of the subject site. That development was able to meet the 37 1:1 parking ratio requirements. The size of the structure was also a concern at the time based on 38 neighborhood meetings. There were a lot of concerns from the neighbors in regards to parking 39 requirements, and the structure being placed close to the property lines. 40 41 Mauladad stated from a planning perspective the analysis is to consider where the proposed 42 amendments would further compromise the current Fry Street Overlay District. Commissioner 43 Rozell questioned if the proposed development complied with the allowed height and parking 44 requirements then the amendment would not be needed. Mauladad confirmed. 45 2 I Chair Strange requested information regarding the Fry Street Small Area Plan (SAP). Mauladad 2 provided information regarding the SAP. This neighborhood is highly involved and active in 3 improving their neighborhood. She stated staff would like to initiate a SAP in order to address the 4 overlay conditions. 5 6 Huemer stated two (2) neighborhood meetings were held where the neighbors discussed Subarea 7 A, parking, traffic, and height concerns for the development. There was a public notification 8 process, however, there were no returned responses. Commissioner Briggle questioned why staff 9 has not received any returned responses if the neighborhood has expressed their concerns for the 10 development. Huemer stated there are a lot of businesses within the 200 foot radius, the responses 11 are limited to owner occupied spaces. 12 13 Commissioner Beck stated it seems odd that staff did not receive any returned responses. He 14 questioned a way to revisit this issue. Commissioner Briggle stated she is glad to see the 15 notification process that is in place. She stated the notification process also includes neighborhood 16 meetings and public hearings. 17 18 Chair Strange stated citizens are allowed to provide feedback on any of the Public Hearing items, 19 however, only those that are located within 200 feet of the subject site will be calculated. DeCurtis 20 stated the Denton Development Code does not require a supermaj ority vote from this Commission 21 if there are more than 20% opposed to this request located within 200 feet of the subject site. 22 DeCurtis stated in that event, City Council would require a supermajority vote. 23 24 Commissioner Briggle referred to Exhibit 35.7.5.E Subarea B Architectural Image Board, she 25 stated she would like the language "his" to be more inclusive. Mauladad agreed. There was no 26 further discussion on this item. 27 28 Ross Culbertson, Senior Planner, provided the backup materials for Public Hearing Item 4B. He 29 provided the location map and zoning map. The Future Land Use Map indicates the site to be 30 Regional Mixed Use. Staff sent out four (4) public notices to property owners within 200 feet of 31 the subject site, and five (5) courtesy notices to property owners within 500 feet of the subject site. 32 Staff has received one (1) returned response in favor of the request. Staff recommends approval of 33 this request. 34 35 Commissioner Taylor referred the land to the south of the subject site, he questioned if that slice 36 of land would be included. Culbertson declined. He stated it was requested for the developer to 37 consider adding that piece of land as well. At this time it will not be included. There was no further 38 discussion. 39 40 Chair Strange called a recess from 5:40 p.m. to 5:48 p.m. 41 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 2. Work Session Reports A. Receive a report and hold a discussion regarding _ bicycle and pedestrian accommodations provided in accordance with the "Update to the Pedestrian and Bicycle Linkage Component of the Denton Mobility Plan ". (PZ16 -016, Pedestrian and Bicycle Component, Julie Anderson Julie Anderson, Bicycle and Pedestrian Coordinator, provided the backup materials for this request. She provided each Commissioner a handout for the bicycle count. Commissioner Briggle questioned what funds City Council has put aside and what funds have been spent to date. Anderson stated she will discuss that information during the presentation. Commissioner Beck questioned if there is a component that requires developments to install bicycle racks. Anderson stated there is not a requirement at this time. It is easier to get a new development to add a bicycle rack to their development, it is isn't as easy to get an existing business to add a rack. Commissioner Dudowicz suggested getting the City to cover the costs of the bicycle rack, and the business could have them installed. Anderson stated that has been discussed in the past. Commissioner Rozell questioned Commissioner Dudowicz what would encourage him to install a bicycle rack to his existing business. Commissioner Dudowicz stated they primarily have vehicles at their site so it wouldn't be beneficial to have a bicycle rack. He stated they have employers that ride their bicycles to work, however, they have a place within the facility to park their bicycles. Commissioner Briggle stated during the Denton Plan updated it was recommended to use the National Association of City Transportation Officials ( NACTO) versus the American Association of State Highway and Transportation Officials (AASHTO). She questioned which one is being used during this component. Anderson stated she tends to use NACTO more during meetings. One of the two Officials is more of a recommendation. Commissioner Taylor questioned which would have more authority between the Transportation Criteria Manual and the Denton Development Code (DDC). Ron Menguita, Long Range Planning Administrator, stated the DDC outplays the Transportation Criteria Manual. There was no further discussion. Chair Strange stated Work Session Item 2B would be continued to the February 10, 2016 meeting. Chair Strange stated Work Session Item 2C would be tabled to after the Regular Meeting. He closed the Work Session at 6:21 p.m. 4 B. Receive a report and hold a discussion regarding the Denton Municipal Electric 2013 -2017 Capital Improvements Plan for electric substation and transmission system upgrades. (PZ 16- 019, Denton Municipal Electric, Brent A. Heath, P.E.) 1 2 There was no discussion on this item. Chair Strange stated this item will be continued to the 3 February 10, 2016 meeting. 4 C. Receive a report and hold a discussion regarding an amendment to the Denton Development Code (DDC) to create a new use and site plan process for Electric Substations. (DCA15- 0003, Electric Substations, Mike Bell) 5 6 This item was continued to after the Public Hearing Items. 7 8 REGULAR MEETING 9 10 The Planning and Zoning Commission convened in a Regular Meeting on Wednesday, January 11 27, 2016 at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 12 the following items were considered: 13 14 Chair Strange called the Regular Meeting to order at 6:30 p.m. 15 16 1. PLEDGE OF ALLEGIANCE 17 18 A. U.S. Flag 19 B. Texas Flag 20 21 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION 22 MINUTES FOR: 23 A. Consider approval of the Planning and Zoning Commission meeting minutes. 24 25 Commissioner Amber Briggle motioned, Commissioner Devin Taylor seconded to approve the 26 meeting minutes. Motion approved (6 -0 -1). Commissioner Devin Taylor "aye ", Commissioner 27 Amber Briggle "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", 28 Commissioner Gerard Hudspeth "aye ", and Commissioner Andrew Rozell "aye ". Chair Jim 29 Strange recused from the vote. 30 31 3. CONSENT AGENDA 32 A. Consider a Preliminary Plat of Lots 4 -8, Block A, of the Hickory Creek Center Addition. The approximately 11.259 acre property is generally located at the southwest corner of Teasley Lane and Hickory Creek Road, within the A. Venters Survey, Abstract No. 1315. (PP15- 0029, Hickory Creek Center, Mike Bell) 33 5 B. Consider a Final Plat of Lots 1 & 2 of Block 2 of the Caliber Collision Addition. The approximately 4.6 acre property is generally located on west side of I -35 Frontage Road, approximately 650 feet south of West University Drive (US Hwy 380), within the B.B.B. & C.R.R.Co. Survey, Abstract No. 192. (FP15 -0044, Caliber Collision, Ross Culbertson) 1 2 Commissioner Devin Taylor motioned, Commissioner Frank Dudowicz seconded to approve the 3 Consent Agenda Items. Motion approved (7 -0). Chair Jim Strange, "aye ", Commissioner Devin 4 Taylor "aye ", Commissioner Amber Briggle "aye ", Commissioner Frank Dudowicz "aye ", 5 Commissioner Larry Beck "aye ", Commissioner Gerard Hudspeth "aye ", and Commissioner 6 Andrew Rozell "aye ". 7 8 4. PUBLIC HEARINGS 9 A. Hold a public hearing and consider making a recommendation to City Council re _ ar�g amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new subdistrict and development standards for a mixed use building on aproximately 1.7 acres. (Z15 -0029, Fry Street Overlay District Amendment, Sophie Huemer) 10 11 Chair Strange opened the Public Hearing. Sophie Huemer, Associate Planner, provided the backup 12 materials for Public Hearing Item 4A. Huemer provided the location map and zoning map. She 13 stated the Fry Street Overlay District was created in 2000 to preserve the unique history and 14 character of the area, known as Subarea A. The overlay district was amended in 2010 to 15 accommodate a mixed -use development, known as Subarea B. The applicant is proposing to 16 further amend the Fry Street Overlay District, creating Subarea B -1 to accommodate for multi - 17 family and retail. 18 19 Huemer stated that Subarea A and B require one (1) parking space for units with two (2) or more 20 bedrooms. Subarea B -1 is asking for units with two (2) or more bedrooms to require .75 spaces. 21 There will be no amendments made to other parking ratios in the Fry Street Overlay District. 22 23 Subarea A allows for 45 feet, two -story units, and the density is based on the minimum unit size. 24 Subarea B allows for 55 feet, four -story units, with 72.5 units /acre as the density. The proposed 25 Subarea B -1, is being requested is 58 feet, with five -story units, 88.2 units /acre as the density, and 26 a reduction for units with two (2) or more bedrooms at a .75 parking spaces per bedroom. 27 28 Huemer provided the Future Land Use map and Denton Plan 2030 Land Use details. Staff sent out 29 27 public notices to property owners within 200 feet of the subject site, and 71 courtesy notices to 30 property owners within 500 feet of the subject site. At this time staff has not received any returned 31 responses. Huemer stated staff recommends denial of this request based on the considerations 32 presented and as the requested amendment further compromise the Fry Street Overlay District 33 Standards. 34 35 Huemer stated there are outstanding comments from the Fire Department in regards to aerial 36 apparatus access to the building. Commissioner Taylor questioned if the concern is the access not 37 the equipment. Huemer confirmed. 38 11 I Commissioner Taylor referred to the process, he questioned if the applicant could apply for a 2 variance or alternative development plan to make changes to the overlay district. Huemer stated 3 for fewer parking spots a variance would be required. 4 5 Commissioner Briggle requested to proposed number of dwelling units. Huemer stated the bed 6 count is approximately 308. Commissioner Briggle stated that could be more than one person per 7 bedroom. Huemer stated the breakdown of the units would be two - three- and four bedroom units. 8 Commissioner Briggle questioned the proposed number of residents. Huemer stated approximately 9 300, one student per bed. 10 11 Commissioner Rozell referred to the original 1:1 parking ratio, he stated that is a good standard to 12 have. Huemer stated the current parking requirement in the Fry Street Overlay District is the 1:1 13 parking ratio. During the neighborhood meeting, the neighbors expressed concern that they didn't 14 feel parking was addressed within the 1:1 ratio, there were also comments that the sites stay 15 completed parked. Staff has received conflicting information. 16 17 Commissioner Beck questioned if the apartments would be individual bedrooms with shared 18 kitchen and common areas. Huemer confirmed. 19 20 Commissioner Dudowicz requested parking requirements for the proposed mixed -use 21 developments on site. Huemer stated those required parking spaces are included in the 220 22 proposed parking spaces. Commissioner Dudowicz questioned if staff feels that is still a low 23 number. Huemer confirmed. 24 25 Commissioner Dudowicz referred to street parking. Huemer stated if they are located within the 26 Fry Street Overlay District, and apply for a Certificate of Occupancy, then they are required to 27 provide a certain number of parking spaces. If they are unable to provide that number they can 28 provide a shared parking agreement for businesses within 1,000 feet of the site. There are some 29 that are limited to a shared parking agreement within 300 feet of the site. 30 31 Commissioner Briggle questioned the number of parking spaces that would be required if they 32 followed Subarea A's requirements. Huemer stated approximately 330 parking spaces, they are 33 proposing 220 parking spaces. 34 35 Rodney King, applicant with EdR Collegiate Housing, 999 South Shady Grove, Suite 6, Memphis, 36 Tennessee. King provided an overview of the project. He stated EdR owns and manages all of their 37 properties. He provided details on each of their properties. He stated none of their properties have 38 a 1:1 parking ratio. Neighborhood meetings were held on September 1, 2015 and September 29, 39 2015, meetings were held with the University of North Texas (UNT) on September 10, 2015 and 40 September 30, 2015. 41 42 Rob Baldwin, applicant with Baldwin and Associates, 3904 Elm Street, Dallas, Texas. Baldwin 43 stated the Denton Plan 2030 promotes mixed -use development. This project will serve as a buffer 44 between UNT and the existing residential areas. Baldwin stated that EdR is a partner with UBER, 45 the proposed project is also in line with the Denton County Transit Authority locations. There is a 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 bicycle sharing program that would be in place and a bicycle storage area located within the proposed garage. King stated U Centre at Fry Street, which was formerly the Sterling Fry Street Apartments, only utilizes a portion of their parking. They are unable to charge for their parking spaces because they do not have a demand for parking. Don Szczesny, Traffic Engineer with Dunaway Associates, 170 North Preston Road, Prosper, Texas. Szczesny stated there is a traffic study in process. The traffic study was completed during peak hours with approximately 30 vehicle trips in the morning, and 41 vehicle trips in the afternoon. There is also approximately 67 pedestrians in the morning and 94 pedestrians in the afternoon. He stated the pedestrian zones in the area are something that need to be addressed. King stated some of the proposed amenities would decrease traffic in the area. Adam Reeves, applicant with Dunaway Associates, 170 North Preston Road, Prosper, Texas. Reeves provided the site capacity and utility information for the site. There are existing eight (8) inch water mains available for connection on Hickory Street and Oak Street. There are existing sanitary sewer mains on Hickory Street and Oak Street. Reeves stated that staff recommend that the building be split between the two sanitary sewer mains. King stated the site does currently have enough capacity for this project. He stated he feels that since the site is located within walking distance to UNT it will cut down on the traffic in the area. Commissioner Beck questioned if the apartments are specifically for students. King stated they are intended for students, however, they cannot restrict residency to only students. Commissioner Beck questioned how those students without vehicles would even get to the development. He questioned where students would park if the parking garage is full. King stated he doesn't believe that the parking garage will be fully parking, the interior the building contains the parking garage that will have approximately 220 parking spaces. King stated he doesn't feel that all students will have vehicles. Baldwin stated where his daughter attends college, there is approximately 20 -30% of students that own vehicles. The rest have another means of transportation or are dropped off by their parents. Commissioner Beck questioned if that is where they are gathering their statistics. King stated they're basing this information off of their other developments. Commissioner Hudspeth questioned written documentation from EdR's other sites to provide other than the verbal presentation. King stated he does have that information, he doesn't have it with him, he didn't feel it was relevant. King stated these are student friendly and pedestrian friendly apartments. He stated that the college book store Vortman's will go back onto the site within the commercial space. They will own their own space. Commissioner Rozell questioned if two people were renting bedrooms would they have a separate lease. King stated they would be individually on the lease, the rooms are rented per room, students are not allowed to double up on the bedrooms. Commissioner Rozell questioned if one person left on the lease would the other person be held responsible. King declined. E3 I Commissioner Dudowicz questioned the cost per bedroom. King stated they are similar to the U 2 Centre at Fry Street, at approximately $650 -$900 per bedroom. 3 4 Commissioner Dudowicz questioned if there would be secured access to the site. King confirmed, 5 for the apartment residents, but not on the commercial retail side. Baldwin stated there is 6 segregated parking for the apartments and commercial retail side. Commissioner Dudowicz 7 questioned the proposed number of parking spaces for the commercial retail side. King stated that 8 number has not been determined. Commissioner Dudowicz stated Vortman's is currently an 9 existing building on the site therefore it will not increase the traffic or parking to the area. King 10 confirmed. 11 12 Commissioner Taylor questioned the access points surrounding the site. Yaohua Yu, stated the 13 private drive would act as a service drive. This drive would serve as the delivery truck drive. Chair 14 Strange questioned the fire apparatus access. King stated he is working with City staff through that 15 process at the moment. 16 17 Yu stated they are proposing Hickory Street or Oak Street as the fire apparatus access, the width 18 and distance requirement are 26 feet and 15 feet. The Fire Marshal is concerned that street parking 19 in the area would interfere with the fire apparatus access. Chair Strange questioned if the required 20 distance could be met. Baldwin stated no, they have 26 feet and 10 feet. 21 22 Commissioner Hudspeth questioned if the private drive would be two -lane road, King confirmed. 23 Commissioner Hudspeth questioned what would be on the other side of the private drive. King 24 stated landscaping would be placed between the road and the existing business. 25 26 Chair Strange stated there are two items for this Commission to consider: the parking ratio 27 amendment, the proposed height, and the density. Strange stated other than those three items the 28 applicant meets the requirements. 29 30 The following individuals submitted a comment card but did not wish to speak during the public 31 hearing: 32 Elaine Davis, 2418 Kaywood Street, Denton, Texas. Opposed to this request. 33 Jennifer Meyer, 717 W. Oak Street, Denton, Texas. Opposed to this request. 34 Penny Cooley, 7770 N. Branch Road, Krum, Texas. Opposed to this request. 35 36 The following individuals spoke during the public hearing: 37 38 Darlene Mullenweg, 711 W. Oak Street, Denton, Texas. Opposed to this request. 39 Concerned that the traffic study was not completed by the City, variance and parking concerns, 40 and traffic concerns. She stated there are not currently bike lanes within this area. Adding more 41 bikes to the area with no bike lanes will cause an issue. 42 43 Commissioner Beck thanked Mullenweg for her comments. He questioned the struggles she faces 44 with parking and traffic. Mullenweg stated she the street parking blocks her driveway access. 45 Commissioner Rozell questioned if more parking spaces for the development would help the area. 46 He stated if there are more parking spaces it will increase the amount of traffic. Mullenweg stated p] I there are too many beds proposed for the 1.7 acre site. This development needs to be located in 2 another part of town. 3 4 Mary Anderson, 924 W. Oak Street, Denton, Texas. Opposed to this request. Concerns 5 with density, traffic and parking. Parking is an issue in the area, the busses in the area block the 6 streets and there are bicycle issues. 7 8 Jeff Palla, 716 W. Oak Street, Denton, Texas. Opposed to this request. Concerns with 9 density and parking for the development. Palla stated he has issues getting in and out of his 10 driveway due to the current parking and traffic in the area. 11 12 Kim McKibben, 1306 W. Hickory Street, Denton, Texas. Opposed to this request. 13 Concerns with the height of the proposed structure, it will impede sunlight from her neighboring 14 business. Concerned with density and parking requirements as well. The proposed development 15 will decrease the existing number of parking spaces for the current Vortman's store and Subway 16 Restaurant. 17 18 Brent Erskin, Vortman's owner, 1314 W. Hickory Street, Denton, Texas. In favor of this 19 request. Erskin stated as a property owner in the area he is aware of the parking issues. He stated 20 that is an issue next to all colleges. He stated as an employer of over 100 employees he has a lot 21 that do not have cars, they choose to carpool or have another means of transportation. 22 23 Commissioner Hudspeth questioned Erskin how he feels the development will help the area. 24 Erskin stated it will clean the area up. The area could be enhanced. He would like to see Big Mike's 25 Coffee Shop pick up business with more students living in the area. Commissioner Hudspeth 26 questioned Erskin on his current sales status. Erskin stated he purchased the business in 2013, and 27 the business has done nothing but grow since then. Erskin stated he feels that the traffic in the area 28 is more so commuters than residents in the area. During school hours the parking is bad, but it is 29 not as bad when school is not in session. 30 31 Commissioner Dudowicz questioned Erskin if he is in favor of selling his business to the 32 developer. Erskin stated they will temporarily sale the business to the developer, his business will 33 temporary relocate during construction, and then the property would be bought back over once 34 construction has been completed. Erskin stated he will own the space within the proposed building. 35 Commissioner Dudowicz stated he agrees that traffic is not as bad in the morning and afternoon 36 as it is during school hours. 37 38 Helen Dewey Reikofski, 723 W. Oak Street, Denton, Texas. Opposed to this request. Stated 39 she teaches at the University of North Texas. Concerns with traffic and insufficient number of 40 parking spaces for each bed. If there are not enough parking spaces there will be more congestion 41 in the area for people looking for parking spaces. 42 43 Commissioner Rozell questioned Reikofski if she is amenable to the potential of traffic increase 44 in the area if those individuals had somewhere to park. Reikofski stated the area is troubled by the 45 amount of traffic, the amount of traffic will only be worsened if there are not enough parking 10 I spaces for those that are legal to live in the neighborhood. She stated all of the students she teaches 2 have their own vehicle. 3 4 Michelle Lynn, 1401 Egan Street, Denton, Texas. Opposed to this request. Glad to see 5 interest in the site. However, as Commissioners this Commission needs to bring smart growth into 6 town. Lynn discussed concerns with traffic. 7 8 Lucas Holl, 815 Crestwood Place, Denton, Texas. Opposed to this request. Opposed to any 9 request within this area that would exceed the Fry Street Overlay District requirements. 10 11 Jay West, 2606 Shelby Ave, Dallas, Texas. In favor of this request. West stated he is a 12 commercial real estate investor involved in the student housing business. This is a great project for 13 the growth UNT is seeing. 14 15 Brigid Corbett, 1220 Ector Street, Denton, Texas. Opposed to this request. Concerned with 16 the number of beds for the size of the land. If there are parking issues, but also extra parking spaces 17 at these developments it would make sense for the developers to make an agreement for others to 18 park on site other than just residents. This might help the parking issue. 19 20 Esther Rodriguez- Phelps, 606 Headlee Street, Denton, Texas. Opposed to this request. 21 Rodriguez- Phelps stated she likes to see Denton grow; however, we need to take into consideration 22 the culture of this town. The Vortman's update would enhance the business and the business owner 23 however, it doesn't help everyone else in the neighborhood. 24 25 There was no one else to speak. Chair Strange closed the Public Hearing. 26 27 Commissioner Taylor stated he has grown up in the area and various portions of Denton. At the 28 time he didn't own a vehicle while he lived on Fry Street, he walked to campus and to the 29 entertainment areas. A large majority of the people looking for the street parking spaces are the 30 commuters, they are not the students that live within the area. Commissioner Taylor stated he is a 31 large fan of density, it brings all of the amenities to the area, and a walkable area. Fewer and fewer 32 millennial individuals are getting cars. There is a need for walkable developments. Commissioner 33 Taylor stated he likes the density however he has an issue with the process, the Fry Street Overlay 34 District was a long thought process. It was made up of a large community with a large amount of 35 views. 36 37 Commissioner Taylor stated if this project were proposed on the south side of Eagle Drive it would 38 be great. This project lacks retail, the area needs more retail as it gets denser. Since this project is 39 cutting out a larger portion of the Fry Street Overlay District he would motion to deny this request. 40 41 Chair Strange requested Commissioner Taylor hold off on his motion until all comments are made 42 by the Commissioners. Commissioner Taylor stated he would withdraw his motion at this time. 43 44 Commissioner Beck thanked the citizens for speaking on this item. He stated the layout of the City 45 was a lot different over the years when he first relocated to Denton. He stated he would mimic the 46 comments that stress how this development would take away from the current Fry Street Overlay 11 I District. If we honor this zoning request it would stretch the current code. There is a need for more 2 student housing. This has to be done in a fashion that sustains our areas surrounding the campus. 3 Commissioner Beck stated he would encourage EdR to go back to their plans and meet the current 4 requirements. He would like to see EdR come to in Denton. Commissioner Beck stated he will 5 follow the staff recommendation to deny this request. 6 7 Commissioner Briggle stated there are portions of the development and process that are still 8 incomplete. The Traffic Impact Analysis and Fire Department apparatus access requirements are 9 both still outstanding. She stated she would like to see the applicant meet with the neighbors again 10 to see what changes would be acceptable to enhance the overlay. Commissioner Briggle stated she 11 agrees with Commissioner Taylor, she is also in favor of density. She stated she is more in favor 12 to postpone this item rather than denying it. 13 14 Commissioner Hudspeth stated he agrees with Commissioner Briggle. He would also like to see 15 the applicant and neighborhood meet again to come up with an agreement. There have been retail 16 development issues in the area, he referred to some businesses changing numerous times. There is 17 interest from Vortman's that is an existing business that has been in the area for a long time. This 18 helps the development. Commissioner Hudspeth stated he wants to see the neighbors and applicant 19 to find a pedestrian plan. 20 21 Commissioner Rozell thanked the citizens for speaking on this item. He stated he sees less car 22 ownership especially with college students. Commissioner Rozell stated he wonders if there is a 23 need for a 1:4 parking ratio requirement within this overlay district. The work put into the overlay 24 district needs to be honored. 25 26 Commissioner Dudowicz stated this project is a need for Denton, it brings quality housing units 27 for students. The issue is amending the current overlay district. The overlay district was put in 28 place by the citizens for the citizens. The development needs to meet the requirements of the 29 overlay district. 30 31 Commissioner Taylor questioned if the denial of this project could preclude any changes for the 32 applicant to be able to submit again within a certain time period. Jennifer DeCurtis, Deputy City 33 Attorney, stated she is not aware of a denial time period. 34 35 Munal Mauladad, Deputy Director of Development Services, stated if this Commission 36 recommends denial, the applicant can choose to withdraw the application or move forward to City 37 Council. 38 39 Commissioner Devin Taylor motioned, Commissioner Larry Beck seconded to deny this request. 40 Motion carried (6 -1). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle "aye ", 41 Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck "aye ", 42 Commissioner Andrew Rozell "aye" and Commissioner Gerard Hudspeth "nay ". 43 44 12 B. Hold a public hearing and consider making a recommendation to City Council regarding _a rezoning from an Industrial Center Employment (IC -E) District to a Regional Center Commercial Downtown (RCC -D) District on aproximately 2.9 acres. The subject property is generally located on the west side of the I -35 Frontage Road, approximately 1,000 feet south of West University Drive (US Hwy 380). (Z15 -0031, Cavender's, Ross Culbertson) 2 Chair Strange opened the Public Hearing. Ross Culbertson, Senior Planner, provided the backup 3 materials for Public Hearing Item 4B. He provided the location map and zoning map. The Future 4 Land Use Map indicates the site to be Regional Mixed Use. Staff sent out four (4) public notices 5 to property owners within 200 feet of the subject site, and five (5) courtesy notices to property 6 owners within 500 feet of the subject site. Staff has received one (1) returned response in favor of 7 the request. Staff recommends approval of this request. 8 9 Juan Vasquez, Vasquez Engineering, 705 W Avenue B 4316, Garland, Texas. Vasquez stated 10 Cavenders's is vested in the property, their plan is to open a store within the year. Vasquez did not 11 have a presentation he was available for questions. 12 13 There was no one else to speak on the item. Chair Strange closed the Public Hearing. 14 15 Commissioner Frank Dudowicz motioned, Commissioner Amber Briggle seconded to approve this 16 request. Motion approved (7 -0). Commissioner Devin Taylor "aye ", Commissioner Amber Briggle 17 "aye ", Chair Jim Strange "aye ", Commissioner Frank Dudowicz "aye ", Commissioner Larry Beck 18 "aye ", Commissioner Andrew Rozell "aye" and Commissioner Gerard Hudspeth "aye ". 19 5. PLANNING & ZONING COMMISSION PROJECT MATRIX 20 A. Planning and Zoning Commission Project Matrix. 21 22 Jennifer DeCurtis, Deputy City Attorney, referred to Public Hearing Item 4A. She stated per 23 Section 35.3.4.3.6 of the Denton Development Code, denial of a zoning request would require a 24 12 month resubmittal period. She stated the applicant could withdraw their application to avoid 25 that time period. Munal Mauladad, Deputy Director of Development Services, stated the 12 month 26 time period would start if City Council denied the request. 27 28 Commissioner Taylor requested staff to provide a proposal to amend the Denton Development 29 Code parking standards. Mauladad stated staff is in the process of revisiting parking standards to 30 accommodate bicycles. She stated if this needs to be immediate it can be pushed forward, if not it 31 is already scheduled within the next few months. Commissioner Taylor requested something small 32 to be inserted for now. Mauladad confirmed. 33 34 Commissioner Rozell referred to Public Hearing Item 4B. He stated this would be a good time for 35 the subcommittee to work on these projects. Mauladad agreed. 36 37 Commissioner Briggle requested an additional presentation from Julie Anderson, Pedestrian and 38 Bicycle Coordinator, to finish her presentation. Mauladad confirmed. 39 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Commissioner Dudowicz requested information regarding the powers and duties of this Commission. Mauladad stated a memorandum would be coming forward to this Commission. There was no further discussion. 6. CONCLUDING ITEMS Chair Strange adjourned the Regular Meeting at 9:05 p.m. He stated the Commission will return to the Work Session Room to continue the Work Session meeting. WORK SESSION C. Receive a report and hold a discussion regarding _ an amendment to the Denton Development Code (DDC) to create a new use and site plan process for Electric Substations. (DCA15- 0003, Electric Substations, Mike Bell) This item was continued to after the Public Hearing Items. Chair Strange called the Work Session back to order at 9:14 p.m. Mike Bell, Senior Planner, presented the backup materials for this request. Bell provided a map which identified approved substations. Consistent conditions include a 10 foot masonry screening wall. Consistent site plans include: buffers to residential areas, tree canopy coverage, driveway locations per the Denton Development Code, and sidewalks. Bell provided the proposed amendments and proposed process. Bell stated the proposed process would allow the Planning and Zoning Commission to review the site before the City actually purchases the property. Commissioner Briggle questioned the notification process. Bell stated the City will notify for the Planning and Zoning Commission meeting and the Public Utilities Board to see if the public agrees with the site before the property is purchased. Commissioner Beck questioned if the notification process is property notification mailings. Bell confirmed, he stated they would also go to the newspaper. Commissioner Hudspeth questioned sidewalks and how they fall into this process. Bell stated they are developed with the substation, however, they might be dead -end sidewalks if there is no neighboring development. Commissioner Hudspeth stated concrete expands over time, so it seems to be a waste of funds. Bell stated this is all a part of a larger conversation with the Engineering Department. Chair Strange discussed the Director being able to grant an alternative screening. Munal Mauladad, Deputy Director of Development Services, discussed the process and appeal process. There was no further discussion. Chair Strange adjourned the Work Session at 9:40 p.m. 14 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: DCA15- 0007b, Version: 1 AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Continue a public hearing and consider amending Section 35.7.9.5, 35.7.10.5, and 35.7.13.5 of the Denton Development Code to include additional Facade Materials as architectural requirements to the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District. The Planning and Zoning Commission recommends approval (7 -0). (DCA15 -0007, Amended Historic District Standards) BACKGROUND The Denton Development Code (DDC) defines two historic districts within the city, being the Oak - Hickory Historic District per Section 35.7.9, and the West Oak Area Historic District per Section 35.7.13; in addition to a separate historic conservation district, the Bell Avenue Historic Conservation District per Section 35.7.10. Each district contains standards for the protection and preservation of structures within the district boundary with defined procedures for submitting a Certificate of Appropriateness (COA's) to the city's Historic Landmark Commission for any construction, alteration or improvements made on any property within the district. In review of past COA applications, the issue has been raised consistently regarding the need to clarify and amend the DDC's historic district standards to include the use of cementitious siding as an appropriate architectural facade material for new construction. The Historic Landmark Commission has received several requests for the use of cementitious siding as an exterior facade material on new accessory buildings within the Oak - Hickory Historic District precipitating the request. The term "cementitious siding" refers to cement fiber board products used as an exterior siding material (in place of hardwood siding) that is manufactured and tested to be fire and insect resistant and impervious to wind and water. The James Hardie Company is a prominent US manufacturer of cement fiber board siding to which "hardie- board" has become a generic colloquial term for this material. The Oak - Hickory Historic District and the West Oak Area Historic District list the permitted facade materials (per Sections 35.7.9.5.I.1 and 35.7.13.5.I.1) as, "brick, wood siding, wood, stone, and stucco." The firm application of these materials is required in order to comply with the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR Part 68) for certain Preservation, Rehabilitation, Restoration and Reconstruction of original structures seeking historic treatments. Staff has applied the strict adherence of permitted facade materials and the Historic Landmark Commission has continuously upheld the standards on COA applications for new accessory structures in providing exacting continuity to primary structures on the City of Denton Page 1 of 4 Printed on 2/26/2016 File #: DCA15- 0007b, Version: 1 property. Yet, mandating the use of wood siding for new construction (i.e. garages, workshops, storage buildings, or infill residential homes) has become an economic burden for the owner in constructing these structures and has caused concern over the longevity and durability of cladding new exterior building facades with wood siding if not required for historic preservation purposes. The Bell Avenue Historic Conservation District also lists the permitted facade materials (per Section 35.7.10.5.F) as verbatim to the other historic districts, yet includes a second sentence stating, "Artificial facsimiles of these materials will have to be considered on a case by case basis. " Although this provision exists, it does not clearly define where "facsimile" materials are to be applied and can be construed to mean application on the original structure; thus potentially affecting the integrity of the contributing structure. In a Work Session on September 14, 2015, HLC Commissioners considered the addition of hardie -board as an approved facade material within historic districts. During that discussion, Commissioners expressed support for a change to the permitted facade materials. Commissioners specifically stated that the wording should be concise to avoid future misinterpretations, and should allow for flexibility for future facade treatments not related to hardie- board. Additionally, HLC Commissioners suggested that staff hold a neighborhood meeting to solicit further feedback from property owners. A neighborhood meeting was held on October 29, 2015 for property owners within all three districts. Attendees expressed support for the proposed amendment, and also indicated a strong interest in a more comprehensive update for the district codes. In an effort to facilitate the code amendment supported by property owners and HLC Commissioners, staff is of the opinion it is reasonable to amend the historic district standards within the DDC, by way of an amended ordinance, to permit cementitious siding as an approved facade material yet specify its application to only new construction. Additionally, the amendment would clarify with cohesive and consistent language the architectural facade materials for all historic districts. PROPOSED REVISIONS: Staff is recommending the following revisions to the architectural regulations (per Sections 35.7.9.5.I.1, Section 35.7.10.5.17 and 35.7.13.5.I.1) to the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District. The proposed code amendment is italicized and regulation edits are shown with a strikethrough. Oak - Hickory Historic District, Section 35.7.9.5.I.1 1. Generally. The e4y permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is also peg initted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. Bell Avenue Historic Conservation District, Section 35.7.10.5.17 F. Facade Materials. The e* permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is also permitted on new construction and accessory buildings. Artificial facsimiles of these materials will hffNe +e be considered on a case by case basis as material technologies progress. All fagade treatments and materials must be typical of the style and period of the main building. West Oak Area Historic District, Section 35.7.13.5.I.1 1. Generally. The e4y permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is also permitted on new construction and accessory buildings. City of Denton Page 2 of 4 Printed on 2/26/2016 File #: DCA15- 0007b, Version: 1 Artificial facsimiles of these inaterials will be considered on a case by case basis as inaterial technologies progress. All facade treatments and materials must be typical of the style and period of the main building. OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION On February 10, 2016, the Planning and Zoning Commission held a public hearing and recommended approval of the rezoning request (6 -0) with the following change to Subsections 35.7.9.5.I.1, 35.7.10.5.17, and 35.7.13.5.I.1: The use of � ceinentitious siding is also peg initted on new construction and accessory buildings. The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On February 8, 2016, the Historic Landmark Commission held a public hearing and recommended approval of the rezoning request (8 -0). On February 10, 2016, the Planning and Zoning Commission held a public hearing and recommended approval of the rezoning request (6 -0) with the following change to Subsections 35.7.9.5.I.1, 35.7.10.5.17, and 35.7.13.5.I.1: The use of - ceinentitious siding is also permitted on new construction and accessory buildings. On February 16, 2016, the Denton City Council held a public hearing and voted (7 -0) to postpone this item until March 1, 2016 at staff's request to allow addition time for public hearing notices to be sent to residents within each of the three historic districts and to resident within 200 feet of the three historic districts. 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: 4.2 Seek clean and healthy neighborhoods in Denton F,XHIRITS City of Denton Page 3 of 4 Printed on 2/26/2016 File #: DCA15- 0007b, Version: 1 1. Staff Analysis 2. Oak - Hickory Historic District Map 3. Bell Avenue Historic Conservation District Map 4. West Oak Area Historic District Map 5. Public Hearing Responses 6. Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Ross Culbertson Senior Planner City of Denton Page 4 of 4 Printed on 2/26/2016 Item ## Planning Report DCA15 -0007 / Amended Historic District Standards Planning and Zoning Commission February 10, 2016 REQUEST: ..Title Hold a public hearing and consider making a recommendation to City Council regarding amending Section 35.7.9.5, 35.7.10.5, and 35.7.13.5 of the Denton Development Code to include additional Facade Materials as architectural requirements to the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District. (DCA15 -0007, Amended Historic District Standards, Ross Culbertson) ..Body APPLICANT: City of Denton BACKGROUND: The Denton Development Code (DDC) defines two historic districts within the city, being the Oak - Hickory Historic District per Section 35.7.9, and the West Oak Area Historic District per Section 35.7.13; in addition to a separate historic conservation district, the Bell Avenue Historic Conservation District per Section 35.7.10. Each district contains standards for the protection and preservation of structures within the district boundary with defined procedures for submitting a Certificate of Appropriateness (COA's) to the city's Historic Landmark Commission for any construction, alteration or improvements made on any property within the district. In review of past COA applications, the issue has been raised consistently regarding the need to clarify and amend the DDC's historic district standards to include the use of cementitious siding as an appropriate architectural facade material for new construction. The Historic Landmark Commission has received several requests for the use of cementitious siding as an exterior facade material on new accessory buildings within the Oak - Hickory Historic District precipitating the request. The term " cementitious siding" refers to cement fiber board products used as an exterior siding material (in place of hardwood siding) that is manufactured and tested to be fire and insect resistant and impervious to wind and water. The James Hardie Company is a prominent US manufacturer of cement fiber board siding to which "hardie- board" has become a generic colloquial term for this material. The Oak - Hickory Historic District and the West Oak Area Historic District list the permitted facade materials (per Sections 35.7.9.5.I.1 and 35.7.13.5.I.1) as, "brick, wood siding, wood, stone, and stucco. " The firm application of these materials is required in order to comply with the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR Part 68) for certain Preservation, Rehabilitation, Restoration and Reconstruction of original structures seeking historic treatments. Staff has applied the strict adherence of permitted facade materials and the Historic Landmark Commission has continuously upheld the standards on COA applications for new accessory structures in providing exacting continuity to primary structures on the property. Yet, mandating the use of wood siding for new construction (i.e. garages, workshops, storage buildings, or infill residential homes) has become an economic burden for the owner in constructing these structures and has caused concern over the longevity and durability of cladding new exterior building facades with wood siding if not required for historic preservation purposes. The Bell Avenue Historic Conservation District also lists the permitted facade materials (per Section 35.7.10.5.F) as verbatim to the other historic districts, yet includes a second sentence stating, "Artificial facsimiles of these materials will have to be considered on a case by case basis. " Although this provision exists, it does not clearly define where "facsimile" materials are to be applied and can be construed to mean application on the original structure; thus potentially affecting the integrity of the contributing structure. In a Work Session on September 14, 2015, HLC Commissioners considered the addition of hardie- board as an approved facade material within historic districts. During that discussion, Commissioners expressed support for a change to the permitted facade materials. Commissioners specifically stated that the wording should be concise to avoid future misinterpretations, and should allow for flexibility for future facade treatments not related to hardie- board. Additionally, HLC Commissioners suggested that staff hold a neighborhood meeting to solicit further feedback from property owners. A neighborhood meeting was held on October 29, 2015 for property owners within all three districts. Attendees expressed support for the proposed amendment, and also indicated a strong interest in a more comprehensive update for the district codes. In an effort to facilitate the code amendment supported by property owners and HLC Commissioners, staff is of the opinion it is reasonable to amend the historic district standards within the DDC, by way of an amended ordinance, to permit cementitious siding as an approved facade material yet specify its application to only new construction. Additionally, the amendment would clarify with cohesive and consistent language the architectural facade materials for all historic districts. CONSIDERATIONS: 1. Staff conducted a survey of cities identified as Certified Local Governments (CLG) within the DFW Metroplex regarding whether or not the use of cementitious siding or Hardie -Board is permitted. The survey findings are as follows: Arlington — Cementitious siding is not restricted in Arlington's two National Register Historic Districts. They do not have local historic districts, only historic buildings. 1. Recommend fagade repairs use original material types. 2. New construction should use "complimentary" materials to distinguish old from new. Dallas - Cementitious siding is permitted on accessory buildings in the Junius Heights District. Cementitious siding is permitted on the bottom two laps of siding on existing structures (to combat wear and tear of moisture and backsplash), on both main and accessory structures. Granbury - Cementitious siding is permitted on new construction. Grapevine - Cementitious siding is permitted on new construction only. Fort Worth - Smooth finish Hardie -Board siding is permitted on infill and accessory structures in historic districts. It is also permitted on lowest six inches of skirting on historic residences to combat wear and tear of moisture and backsplash. Planning Report Project Number Page 2 of 5 Mansfield — Does not have defined historic districts, only historic buildings. Hardie -Board siding is permitted on accessory structures Plano - Cementitious siding is permitted on new construction only. Waxahachie - Cementitious siding is permitted on new construction only. The surveyed results indicate all cities permit the use of cementitious siding or Hardie -Board on new construction, with some caveats. Arlington, which does not have local historic districts, permits the use of "complimentary" materials on new construction to distinguish old construction from new construction. Dallas permits its use on accessory buildings in one district only. Both Dallas and Fort Worth permit it on the bottom two laps or six inches of siding on existing structures as a deterrent to wood rot and moisture damage. Based on the survey results, staff recommends the application and installation of smooth sided cementitious siding to only new construction buildings within Denton's historic districts, considered on a case -by -case basis by the Historic Landmark Commission and only with an approved Certificate of Appropriateness. 2. Historic preservation activities are not compromised with the addition of cementitious siding materials. The DDC lists methods and procedures for restorative work within the historic district sections which comply to the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR Part 68) and the National Park Services' Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings. The guiding standards prohibit artificial or facsimile products unless the restorative work clearly differentiates new work from the original construction. 3. New construction of homes and accessory structures that are clad in cementitious siding and which are designed to reflect period architecture are shown to enhance the context of historic district neighborhoods and spur investment towards true preservation treatments to contributing historic structures. 4. On July 23, 2015, Development Services mailed a survey to residents within the historic district neighborhoods to seek input in favor or against allowing cementitious siding for new construction. The results indicated general support for the amendment yet additional questions were raised over the application and compliance of the code amendment throughout the three distinct districts. Development Services further held a community meeting on October 29, 2015 to clarify the code amendment's intent. While more questions were raised over a broader need to comprehensively amend larger components of the Historic District Standards for each district, attendees expressed support for the proposed amendment. To date, the City has received 21 citizen responses to the survey with a majority in favor to the use of cementitous siding for new construction and one response not in favor for the Code Amendment. 5. The Historic Landmark Commission and property owners within historic districts have consistently indicated support for a code amendment that permits the use of cementitous siding specifically for new construction and accessory buildings to further protect existing historic structures. Planning Report Project Number Page 3 of 5 6. Per Sections 35.3.2.A and 35.3.3.A of the DDC, Denton Plan Amendments shall have a public hearing with action by the City Council after a recommendation from the Planning Commission. PROPOSED REVISIONS: Staff is recommending the following revisions to the architectural regulations (per Sections 35.7.9.5.I.1, Section 35.7.10.5.E and 35.7.13.5.I.1) to the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District. The proposed code amendment is italicized and regulation edits are shown with a strikethrough. Oak - Hickory Historic District, Section 35.7.9.5.I.1 1. Generally. The e4y permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is peg initted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. Bell Avenue Historic Conservation District, Section 35.7.10.5.E F. Facade Materials. The e4y permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is permitted on new construction and accessory buildings. Artificial facsimiles of these materials will ha-ve to be considered on a case by case basis as material technologies progress. All fagade treatments and materials must be typical of the style and period of the main building. West Oak Area Historic District, Section 35.7.13.5.I.1 1. Generally. The e4y permitted facade materials are brick, wood siding, wood, stone and stucco. The use of smooth sided, cementitious siding is permitted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. STAFF RECOMMENDATION: Staff recommends approval of the Denton Development Code amendment as submitted. 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, a notice was published in the Denton Record Chronicle for open meetings scheduled for the Historic Landmark Commission, the Planning and Zoning Commission and City Council to discuss this item. Planning Report Project Number Page 4 of 5 ATTACHMENTS: Oak - Hickory Historic District Map Bell Avenue Historic Conservation District Map West Oak Area Historic District Map Prepared by: Ross Culbertson, Senior Planner Respectfully submitted: Aimee Bissett Director of Development Services Planning Report Project Number Page 5 of 5 Bell Avenue Historic District UUULip►NE ;,?ISITY DR me A0DUWAN N Bell Avenue Conservation DistrictIl W E s� 0 50 100 200 p � C(I)-FY ����uiuuuuuuuu�iiiu��llllll�ll�llllll�llllllllllllllll�ui� DENTON � Lbeve@oNivart^rrrT Sz:;irviiacss US III1heeCitlyvoffDento�n ands Rav�een madeoa valPa��e to 1�ie publlchbased on �he Pu��ic �n ormethon�AtL�t The �i1y o{�Dentonl me�Cteseevery a Ih� I,peo uceeang publushMile os{�ou ien,ueriOteccuoate informet4orippossslbleh q 4 o warranliesthezpiegsea of Implled, are provided for the data herein, Its use, or Its Interpretation. Utilization of this map indicates understanding and acceptance of this statement. III In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross.culbertson@cityofdenton-com Fax: (940)349-7707 Project No: DCA15-0007a fflvffl��� Comments: Please circle one: Neutral to request Opposed to request �4 .. . . .... .. . 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 2/26/16. X�q-ql.,Lcil- "l 141 tes-Videos )I ell 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: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross.culbertson @cityofdenton.com Fax: (940)349 -7707 In� favor of request w Comments: Signature: Printed Name Project No: DCA15 -0007a Please circle one: Neutral to request Opposed to request C.'Y( Mailing Address: � n.... � w ). City, State Zip: u�� .�.,.,.,? Phone Number: '��� �. .. ...... m. _..:. Email Address: :._ . � .. p � � � . �.... " _ — Physical Address of Property within 200 feet:. a� �� 4. M � V�,. 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 2/26/16. tILc /cit q! taRAeil it 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: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross.culbertson @cityofdenton.com Fax: (940)349 -7707 Project No: DCA15 -0007a Please circle one: In favor of request Neutral to request Opposed to request Comments: .......... .1._ Signature: Printed Name: Mailing Addres City, State Zip: Phone Number: Email Address: Physical Address 1 i-o er °ty 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 2/26/16. i,cCl; // v ! %r ;tmmatyaa ieff to , °c vern i i�AUn��...gly- CoLillc aid- cm l tic iI't i III lics-yi eo 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: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross .culbertson @cityofdenton.com Fax: (940)349 -7707 In favor of request Comore ► ►� �... ,.,"��' °. Project No: DCA15 -0007a Please circle one: Neutral to request Opposed to request Mailing Address: City, State Zip: Phone Number _.... ` _ -u ..............w Email Address: Physical Address of Property within 200 feet: 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 2/26/16. City of Denton PIanning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofden ton.com 02/22/2016 09:15 9727885234 DOUBLETREE ACCTG PAGE 01/01 in order for your opinion to be counted, please complete this form and mall You may 1 email or fax a copy 1'. Email: ross-culbertsojoL@cityofdenton.com (940)349-7707 Project No: D i � Please circle one: Cln'favor of xeque Neutral to request Opposed to request Comments: 1 S� for 1 : The staff be posted / 2/26/16. �M • ".� -. City of Denton Planning Diviaiou/City Hall Wosta2l K Riga Denton, TX 76201/940,349,8541 www.cityofda9mcom 02/17/2016 07:57 9405660071 DONALD MOORE PAGE 01 In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton., TX 76201 You may also email or fax a copy to: Email: ross.culbertson@cityofdenton-com Fair: (940)349 -7707 Project No: DCA15 -0007a Please circle one: C::Tnfav0r of request Neutral to request Opposed to .request Comments: Signature: Printed Narne: r � w Mailing Address: _ l, - w City, state zip: Phone Number:_ Email Address: A)1,4 Physical Address of Property within 200 feet: •��� ��'� l; or 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 2/2611.6. I�tt :llwwwu�it oterlion,eo�r�� vernrrletlt/oi�oullciNleit - t�rowra�wl�a etldas- tnin.utes- �aideos City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.$541 www.cityofd nton.corn 02/16/2016 18:49 FAX 940 484 4663 RESPONSIVE PROPERTY HUT Inorder for your opinion to be counted, Please complete tbis form and mail to: Deparument of Development Services Attn. Ross Culbertson, Projoct Manager 221 N. Elm Street Denton, TX 76201 you may also email or fax a copy. -to: Email; ross-culb.ertson@rityofdonton.com ]Fax: (940)349-7707 Project No: DCA15-0007a Please circle one: iw iTen�— Neutral to request opposed to request Comments, Signature: Printed No Mailing Ai City, State Zip: 06 Phone Number: X11 1► 4 Physical Address of Property within 200 foot: —.0;?; MMMM-10—to W For specific information regarding the request, please refer to the City's websitc (see link below) for stafrs analysis. The staff analysis will be posted on 2/26/16. QpiqqW.qJl/cj�y :LnJ11p1qs-v ideo b.W.L1—W—WW, Qi -ty-0fde-11=&=4Q—V0r-1MB0- !Spy q . _a City ofDanton Planning Division/City Hall West/221 N. Elra Street� DenWn, TX 7620 I/M349.9541 www.cityofdonton.com 02/22/2016 19:10 FAX 940 484 4663 RESPONSIVE PROPERTY MGMT You may also email or fix a copy to: Email: ross.culbertson@cityofdenton.com Fax: (940)349-7707 -CZInfavor f request Comments: a I .I , to " gm� Phone Number: is Project No; DCA15-0007a Please circle one: EM v =.I 71 - = � IT,hysical Address of Property within 200 feet: .1 . L ............ ► - . 1; - I & - . . . LZ7,-riv for staffs analysis. The staff analysis will be posted on 2/26/16. hwwwcjt �0t n xom/gQymngqntki (-Council/c it. -council-qg,(.!q qes-videos 'iIIIIIII! 11111p�1111111�� III 111M, 02/16/2016 I In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Ross . o Project 221 N. Elm Street Denton, 76201 You may also email or fox a copy i Email: rbss.culbertson@cityofdenton.com Fax- (940)349-7707 ` � , �► �� III ��: Please circle one: jwor of requesi- Neutral -to request Opposed to request Comments: ra Mailing EAIT 1, f for t: s analysis. The staffanalysis will be posted 4 2/26116. i I r: l 4 - 1 : f 4 02/22/2016 19:10 FAX 940 484 4663 RESPONSIVE PROPERTY MGKT In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: . Email: ross .culbertson@cityo£denton.com Fax: (940)349 -7707 Project No: DCA15 -0007a In favor of request Comments: Signature: Printed Name: Mailing Address: . m City, State Zip: Phone Number: V _ h -. Email Address: Please circle one: Neutral to request. Opposed to request Physical Address of Property within 200 feet: _3 da GnaLJL (a 007 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 2/26/16. City of Denton Planning Division /City Hall We$021 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com 02/22/2016 19:09 FAX 940 484 4663 RESPONSIVE PROPERTY NGIrr 111 order for Your Opinion to be cuuntedg Please complete this for and mail to: Department of Development Services Attn: Ross Culbertson, Project Manag 221 N. Elm Street Denton, TX 76201 You may also email, or fax a copy to: Email: "O'ss.cillbcrt$On@cityofdenton .co ui Fax: (940)349,-77 7 I Please drele one: Neutral to request Opposed to request Comments: Sigaature.- Printed N& Mailing Ac City, State Zip: E►M I "I I --Ernail Address: Physical Address of PfOperty within 200 feet: 47 & I A-a-c_w City of Denton M11 02/22/2019 19:09 PAX 940 494 4989 RB9PON9IVB PROPBRTI' XGKr 49004 In ardor for R opinion to be mmalad, plan f o and mal to: Plasm circle one: favorc�fzna�.as Nouval to Mquest ONo-d to request C For "ific infonnatiort rugavding the request plesse City's we i (we link below) facets,roonalysis. The gaff analysis win be posted on Mfill& tii�Io1IilIIiY41iC1ila.i 02/22/2016 19:09 FAX 940 484 4663 RESPONSIVE PROPERTY KGKT In order for your opinion to be counted, please complete this form and mail to: Department of Development Savices Attn: Ross Culbertson, Project Manager 221 N. Ehn Street Denton, TX 76201 You may also email ► fax a copy to: �Uo"- ftlistwula":PM rox: (940)349-7707 Project No: DCA154007a Please circle one: ��fav7!! Loi reque request I City, State Zip: � e-VJDA' '-C' � acl it Address: Physical Address of Property within 200 feet: M.Lo dnMVWTVn7ztg7,WM17—reTL1esf, picase Mefeff-WIWUffy-'s wct)sltc (see link below'q for staTs analysis. Ile staff analysis will be posted on 2/26/16. qfdcntoncowjhmver erlt/cjt -coun:cil/city-,coti,ncil,- afkt eel a --nii�vLdeo I r'yWT0-T-J ffF4L—m'7X �. Elm StreA Denton, T;k 76201/940.349.8541 WWW.0ityoffienton.cam !ff 02/22/2016 19:09 FAX 940 484 4669 RESPONSIVE PROPERTY RGHT In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross .culbertson @cityofdenton.com " Fax: (940)349 -7707 Project No: DCA15 -0007a Please circle one: In favor of request Neutral to request Opposed to request Comments: Signature: Printed Na Mailing Ai City, State Zip: Phone Number: Email Address: Physical Address of Property within 200 feet: 3 ov L J . ICI 0 0 2 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 2/26/16. rf entc n.co Gov r wrntwA • uncil�a erld a tniluutes- videos. City of Denton Planning Divisico/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com 02/22/2016 19:09 FAI 940 484 4663 RESPONSIVE PROPERTY HGKT In order for your opinion to he counted, please complete this form and mad to: You may also email or fax a copy to: Fax: (940)349'7707 Project No; DCAIS-0007a Please circle one: In favor of request Neutral to request Opposed to request Comments: R 1 0 M I Address: ffhysical Address of Property within 200 feet: .0-2,S6 M 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 2/26/16. In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ross.culbertson @cityofdenton.com Fax: (940)349 -7707 Project No: DC, Please circle one: In favor of request eutral to request Comments: W Signature: Opposed to request Printed Name: ... Z-..?` "1�...: ...... Mailing Address: TOY _& . e .... 51v -e City, State Zip: m..Rnmd'a = w........ 7 ��.... .............. W...... Phone Number: 2,5 - !? Email Address: Physical Address of Property within 200 feet: 3 3 rCc ree-P 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 2/26/16. 1111110111 t� rW CH /Citty.C.OUm rCm l ,I, � : -r� iiutGUC ."... M 4 p:. City of Denton Planning Division/City Hall West /221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com 02/20/2016 11:03 9403B74383 JACK MILLER PAGE 01 In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ross Culbertson, Project Manager 221 N, Elm Street Denton, TX 76201 YOU may also email or fox a copy to: Email: 'ross.culbertson@cityofdenton.com cityofdenton.com Fax: (940)349 -7707 Mailing Phone Number: .Email Address: V-- Project No: CA,15 -0007 Please circle one; Neutral to request -FR Physical AddTCSS of Property within t X 01 4;1- -_ 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 2/26/16. 1tt /lvv wrPr ty_ e t tt. ver t r� r�tl l r- o1 tGf t -c uned; ndas minutes videos City of Denton Planning Division/City Hall Wcst/221 N. Elm S Denton, TX 76201/940.349.8541 www.cityofUenton.com 02/19/2016 16:37 9403821632 BARBARA RUSSELLREALT PAGE 01 nd a on to be counted, please complete this form a maiM XTL,LT-MAPr-LTXY-,TJU-4f,LJnI —KIMCOURN, f)epartnient of Development Services Attn: Ross Culbertson,prqicct Manager 221 N . Elm Street 1.)enton,TX 76201 You may also email or fax a copy to: Email: ross.culbertson@cityofdenton.com Fax: (940)349-7707 Project No: DCA15-0007a Please circle one: In favor of request Neutral to request Opposed to r Comments, . . .............. . Signature: 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 2/26/16. lutes Yide(ns tigo -gw /Y".cityof _at —1 —1 -- -denton.cmu/Z2y�Lqlair /c.i!y,�cqunci—IJcity-_council -das ciNi Vail WeW221 N. Elm Street Denton, TX 762004 8 0.349.51 000000Q.TrATM91 Fib) 6 Q 1631VIII ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE DENTON DEVELOPMENT CODE TO MODIFY THE ARCHITECTURAL REGULATIONS FOR PERMITTED FACADE MATERIALS FOR HISTORIC DISTRICTS IN SUBCHAPTERS 35.7.9.5.I.1, 35.7.10.51, AND 35.7.13.5.I.1; AND 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. (DCA15- 0007) WHEREAS, pursuant to Ordinance No. 2002 -040, the City Council of the City of Denton, Texas, adopted the Denton Development Code ( "the Development Code "); and WHEREAS, the City desires to amend Subchapters 35.7.9.5.I.1, 35.7.10.5.F, and 35.7.13.5.I.1 in order to modify the architectural regulations for permitted facade materials within the Oak - Hickory Historic District, Bell Avenue Historic Conservation District, and the West Oak Area Historic District; and WHEREAS, the Historic Landmark Commission (HLC) has received several requests for the use of cementitious siding, to include "Hardie Board ", as an exterior facade material; and WHEREAS, the HLC held a work session on September 14, 2015 to consider the addition of Hardie Board as an approved facade material within the historic districts and expressed support for a change to the permitted facade materials; and WHEREAS, a neighborhood meeting was held on October 29, 2015 for property owners within all three districts and attendees expressed support for the proposed amendment; and WHEREAS, on February 10, 2016, the Planning and Zoning Commission held a public hearing, in compliance with the laws of the State of Texas, after giving the requisite notices by publication and otherwise, and recommended approval (7 -0) of the Development Code Amendments to Subchapters 35.7.9.5.I.1, 35.7.10.5.F, and 35.7.13.5.I.1; and WHEREAS, on February 14, 2016, certified public mailings were made to residents within each of the three historic districts in addition to residents within 200 feet of the historic boundaries to inform property owners of the code amendments and solicit additional public input; and WHEREAS, on February 16, 2016, and March 1, 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; WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the Denton Development Code Amendment, have determined that the amendments are 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 Denton Development Code Amendments to Subchapters 35.7.9.5.I.1, 35.7.10.5.17, and 35.7.13.5.I.1 are 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 Development Code Amendments are indicated below and will be incorporated in each Subchapter: Oak - Hickory Historic District, Section 35.7.9.5.I.1 shall be replaced with the following: 1. Generally. The permitted facade materials are brick, wood siding, wood, stone and stucco. The use of cementitious siding is also permitted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. Bell Avenue Historic Conservation District, Section 35.7.10.5.F shall be replaced with the following: F. Facade Materials. The permitted facade materials are brick, wood siding, wood, stone and stucco. The use of cementitious siding is also permitted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. West Oak Area Historic District, Section 35.7.13.5.I.1 shall be replaced with the following: 1. Generally. The permitted facade materials are brick, wood siding, wood, stone and stucco. The use of cementitious siding is also permitted on new construction and accessory buildings. Artificial facsimiles of these materials will be considered on a case by case basis as material technologies progress. All facade treatments and materials must be typical of the style and period of the main building. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person, 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 5. 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 6. In compliance with Section 2.09(c) of the Denton Charter, this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BV-- - r City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 16 -334, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Department of Development Services CM/ ACM: Jon Fortune Date: March 1, 2016 SUBJECT Hold the first of two public hearings to consider annexing approximately 4,132.40 acres of land contained in ten of the fifteen annexation areas, which received a Non - Annexation Agreement in 2010, and a one year extension in 2015 that will expire on March 16, 2016. Four of the annexation areas include approximately 2,789.14 acres of land and are primarily located within the northwestern quadrant of the City of Denton's Extraterritorial Jurisdiction (ETJ), Division 1, and are identified as PAA1, PAA2, PAA3, and PAA4. The remaining seven areas include approximately 1,343.26 acres of land and are considered unincorporated ETJ pockets located within the body of the City of Denton's corporate limits and are identified as DH1, DH2, DH3, DH4, DH5, and DH14. 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 a cessation date for 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 expire on March 16, 2016. In total, about 130 agreements were signed and notarized for approximately 183 properties. The signed Non - Annexation Extension Agreements were approved by City Council on March 3, 2015. These properties are schedule to be annexed upon the expiration date. Prior to annexation, per the Tx.LGC §43.056, a city must make provisions to provide municipal services, also known as a Service Plan, for the proposed annexation areas no later than two and one -half years (21/2) years after the effective date of the annexation unless: (1) The City cannot reasonably provide certain services within that period; and City of Denton Page 1 of 3 Printed on 2/26/2016 File M ID 16 -334, Version: 1 (2) The City proposes a schedule for providing the services that extends not longer than four and one -half (41/2) years after the effective date of the annexation. Id. at §43.056(b). In 2010, the City Council approved the 2010 Service Plan for the designated annexation areas. Immediately, the City is required to provide the following services to the proposed areas on the effective date of the annexation: (1) Police protection; (2) Fire protection; (3) Emergency medical services; (4) Solid waste collection, except as provided by subsection (o). Subsection (o) provides that a municipality is not required to provide collection service to a person who continues to use the collection services of a privately owned collection service; (5) Operation and maintenance of water and wastewater facilities in the annexed area that are not within the service area of another water or wastewater utility; (6) Operation and maintenance of roads and streets, including road and street lighting; (7) Operation and maintenance of parks; and (8) Operation and maintenance of any other publicly owned facility, building or service. In the same manner, a Service Plan has inherent limitations. A Service Plan may not: (1) Require the creation of another political subdivision; (2) Require a landowner in the area to fund the capital improvements necessary to provide municipal services in a manner inconsistent with Chapter 395 unless otherwise agreed to by the landowner; or (3) Provide services in the area in a manner that would have the effect of reducing by more than a negligible amount the level of fire and police protection and emergency medical services provided within the corporate boundaries of the municipality before annexation. Id. at §43.056(f) Before the second (2nd) anniversary of the date an area is included within the corporate boundaries of the City by annexation, the City may not: (1) Prohibit the collection of solid waste in the area by a privately owned solid waste management service provider; or (2) Impose a fee for solid waste management services on a person who continues to use the services of a privately owned solid waste management service provider. Id. at §43.056(n) The City is not required to provide solid waste collection services to a person who continues to use a privately owned solid waste management service provider. Private solid waste collection service providers operating in the affected area immediately prior to annexation and currently providing customers with service may continue to provide their existing service for up to 2 years in accordance with Texas Local Government Code. The ordinances are being prepared by the City's Legal Department for the ten areas. City of Denton Page 2 of 3 Printed on 2/26/2016 File M ID 16 -334, Version: 1 PRIOR ACTIONS The following is a summary of the actions taken by the City in association with the annexation: 1. January 29, 2016, Notice of Intent to Annex was sent certified mail to the public /private entities and railroad companies; 2. February 2, 2016, The City adopts an ordinance setting dates for two public hearing, authorizes the publics of notice of public hearing and approves or directs preparation of a service plan for the annexation; 3. February 3, 2016, Posted the Notice of Public Hearing on City Website; and 4. February 17, 2016, The Public Hearing Notice was published in the Denton Record Chronicle. OPTIONS 1. Proceed with annexation. 2. Decline annexation 3. Table this item. EXHIBIT 1. 2016 Annexation Service Plan Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Katia Boykin, CPM Planning Supervisor City of Denton Page 3 of 3 Printed on 2/26/2016 CITY OF DENTON SERVICE PLAN 2016 Annexation L AREA ANNEXED The areas to be annexed include approximately 4,132.40 acres of land contained in eight (8) areas. Four annexation areas consist of approximately 2,789.14 acres, generally located in northwestern quadrant of the City of Denton's Extraterritorial Jurisdiction (ETJ), Division 1, and are identified as PAAl, PAA2, PAA3, and PAA4. The remaining four areas include approximately 1,343.26 acres of land, and are unincorporated ETJ pockets located within the body of the City of Denton's corporate limits, and identified as DH1, DH2, DH3, DH4, DH 5, and DH14. These areas are depicted in the attached location map along with a general description of each area. II. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Government Code, Sections 43.021; 43.065; and 43.056(b) -(o) (Vernon 2008, as amended). Municipal facilities and services to the annexed areas described above will be provided or made available on behalf of the City of Denton in accordance with the following plan. The City of Denton shall provide the annexed tract the levels of service, infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maintenance available in other parts of the City of Denton with similar topography, land use, and population density. III. AD VALOREM (PROPERTY OWNER) TAX SERVICES A. Police Protection Police protection from the City of Denton Police Department shall be provided to the areas annexed at a level consistent with current methods and procedures presently provided to similar areas on the effective date of the ordinance. Some of these services include: 1. Normal patrols and responses; 2. Handling of complaints and incident reports; 3. Special units, such as traffic enforcement, investigations and special weapons; and 4. Coordination with other public safety support agencies. As development commences in these areas, sufficient police protection, including personnel and equipment will be provided to furnish these areas with the level of police services consistent with the characteristics of topography, land utilization and population density of the areas. Upon ultimate development, police protection will be provided at a level consistent with other similarly situated areas within the city limits. 1 B. Fire Protection The Denton Fire Department (DFD) will provide emergency and fire prevention services to the annexation areas. These services include: L Fire suppression and rescue; 2. Pre - hospital medical services including triage, treatment and transport by Advanced Life Support (ALS) fire engines, trucks and ambulances; 3. Hazardous materials response and mitigation; 4. Emergency prevention and public education efforts; 5. Technical rescue response; and 6. Construction Plan Review and required inspections. Fire protection from the City of Denton shall be provided to the areas annexed at a level consistent with current methods and procedures presently provided to similar areas of the City of Denton on the effective date of the ordinance. As development commences in these areas, sufficient fire protection, including personnel and equipment will be provided to furnish these areas with the level of services consistent with the characteristics of topography, land utilization and population density of the areas. It is anticipated that fire stations planned to serve areas currently within the City of Denton will be sufficient to serve areas now being considered for annexation. Upon ultimate development, fire protection will be provided at a level consistent with other similarly situated areas within the city limits. C. Emmency Medical Service The Denton Fire Department (DFD) will provide the following emergency and safety services to the annexation areas. These services include: 1. Emergency medical dispatch and pre - arrival First Aid instructions; 2. Pre - hospital emergency Advanced Life Support (ALS) response; and transport; 3. Medical rescue services. Emergency Medical Services (EMS) from the City of Denton shall be provided to the areas annexed at a level consistent with current methods and procedures presently provided to similar areas of the City of Denton on the effective date of the ordinance. As development commences in these areas, sufficient EMS, including personnel and equipment will be provided to furnish these areas with the level of services consistent with the characteristics of topography, land utilization and population density of the areas. 2 Upon ultimate development, EMS will be provided at a level consistent with other similarly situated areas within the city limits. D. Solid Waste Solid Waste and Recycling Collection Services will be provided to the newly annexed property immediately upon the effective date of the annexation at a level consistent with current methods and procedures presently provided to similar areas within the city. Private solid waste collection service providers operating in the affected area immediately prior to annexation and currently providing customers with service, may continue to provide their existing service for up to 2 years in accordance with Texas Local Government Code. E. Wastewater Facilities All the proposed annexation areas are within the City of Denton Sewer Service Area as defined by Certificate of Convenience and Necessity (CCN) Number 20072 as issued by the Texas Commission on Environmental Quality (TCEQ). As development commences in these areas, sanitary sewer mains will be extended in accordance with the provisions of the City's codes, ordinances and regulations. City participation in the costs of these extensions shall be in accordance with applicable City ordinances and regulations. Capacity shall be provided consistent with the characteristics of topography, land utilization, and population density of the areas. Sanitary sewer mains and lift stations installed or improved to City standards within the annexed areas which are located within dedicated easement, rights -of- way, or any other acceptable location approved by the City Engineer, shall be maintained by the City on the effective date of this ordinance. Operation and maintenance of wastewater facilities in the annexed areas that are within the service area of another water utility will be the responsibility of that utility. Operation and maintenance of private wastewater facilities in the annexed area will be the responsibility of the owner. F. Water Facilities PAAl, PAA4, DH -1, DH -2, DH -3, DH -4, DH -5, DH -6, DH -8, DH -10, DH -11, DH -13, and DH -14 annexation areas are within the City of Denton Water Service Area as defined by Certificate of Convenience and Necessity (CCN) Number 10195 as issued by the Texas Commission on Environmental Quality (TCEQ). PAA2S and PAA3 annexation areas lie within the City of Denton Water Service Area as defined by Certificate of Convenience and Necessity (CCN) Number 10195 as issued by the Texas Commission on Environmental Quality (TCEQ). Bolivar Water Supply Corporation is dually certified in portions of this area under CCN Number 11257. 3 Connections to existing City of Denton water distribution mains for water service will be provided in accordance with existing City ordinances and policies. Upon connection to existing distribution mains, water service will be provided at rates established by city ordinance. As new development occurs within these areas, water distribution mains will be extended in accordance with Denton's Codes, ordinances and utility service policies. City participation in the costs of these extensions shall be in accordance with Denton's codes and ordinances. Water service capacity shall be provided consistent with the characteristics of topography, land use and population density of the area. Operation and maintenance of water facilities in the annexed area that are within the service area of another water utility will be the responsibility of that utility. Existing developments, businesses or homes that are on individual water wells or private water systems will be allowed to continue to remain on these systems until a request for water service is made to the City. These requests for service will be handled in accordance with the applicable utility service line extension and connection policies currently in place at the time the request for service is received. G. Roads and Streets Emergency street maintenance shall be provided within the annexation areas on the effective date of the applicable ordinance of acceptance. Routine maintenance will be provided within the annexation areas and will be scheduled as part of the City's annual program and in accordance with the current policies and procedures defined by the ordinance and /or as established by the City Council. Any construction or reconstruction will be considered within the annexation areas on a City wide basis and within the context of the City's CIP and /or yearly fiscal budgetary allotments by the City Council. Roadway signage and associated posts will be replaced in priority of importance starting with regulatory signs, then warning signs, then informational signs and in conformance with fiscal allotments by the City Council. If a sign remains, it will be reviewed and placed on the City's inventory listing for routine replacement. All exiting signs will be reviewed for applicability and based upon an engineering study. New signs will be installed when necessary and based upon an engineering study. Routine maintenance of road /street markings will be placed on a priority listing and scheduled within the yearly budgetary allotments by the City Council. M H. Parks, Playgrounds, Swimming Pools Residents within the areas annexed may utilize all existing park and recreation facilities, on the effective date of this ordinance. Fees for such usage shall be in accordance with current fees established by ordinance. As development commences in these areas, additional park and recreation facilities shall be constructed based on park policies defined in the Park Master Plan and as specified in the Park Dedication and Development Ordinance. The general planned locations and classifications of parks will ultimately serve residents from the current City limits and residents from areas being considered for annexation. I. Publicly Owned Facilities Any publicly owned facility, building, or service located within the annexed area, and not otherwise owned or maintained by another governmental entity, shall be maintained by the City of Denton on the effective date of the annexation ordinance. J. Other Services Other services that may be provided by the City of Denton, such as municipal and general administration will be made available on the effective date of the annexation. The City of Denton shall provide level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the City of Denton with topography, land use, and population density similar to those reasonably contemplated or projected in the area. IV. UNIFORM LEVEL OF SERVICES IS NOT REQUIRED Nothing in this plan shall require the City of Denton to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. V. TERM This service plan shall be valid for a term of ten (10) years. Renewal of the service plan shall be at the discretion of City Council. VL AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056. E Location Map and General Descriptions l 1 ' r3 l"I rrl l�r r f r� r�lrrr � i , h� � e i f r �iliu� t t r,i 'j � 1;- ��i�il�ia .,... a.. d��)p�aj��r��Px1J �f F;�rfyr r �l (� ! i'�li�li�(fri ill r Ii; lire �Lr x I`sr � Irks r, Lj rV I �`, PM `wiY � ;,, ���1 l r ll: ���r�1r �% �r 'r•�wr� ���l�rrdt rep /r! r ��i4 � � �� 5 r � ., � .i � .... Irr lr��i�llly� li Nl�✓ rj � �i��d �i, iltr�.e� l 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 PAA3 General Location: South side of Ganzer Road; north of FM 1173; east and west of Barthold Road Acres: 465.37 CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 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 D EN'FON File #: ID 16 -310, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as West Gate Business Park (WGBP Investments, LTD) Reinvestment Zone No. XIII for commercial/industrial tax abatement; establishing the boundaries of such zone; making findings required in accordance with Chapter 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; and providing an effective date. BACKGROUND The attached ordinance establishes Reinvestment Zone XIIL Under Chapter 312 of the Texas Tax Code, businesses that receive tax abatements must be located within a reinvestment zone, a designated area where economic development is encouraged. West Gate Business Park (WGBP Investments, LTD), plans to develop an industrial business park, in Denton. The property included within the boundaries represents a site of approximately 22 acres generally located South of West University Drive along Western Boulevard. City Council's adoption of the ordinance establishing the reinvestment zone will allow Council to consider a tax abatement agreement with WGBP Investments. WGBP Investments is an entity made up of local real estate investors /developers, including the Martino Group and Links Construction. The business park, which will eventually include three multi - tenant buildings totaling 413,000 square feet of new industrial/manufacturing space, provides a manufacturing and industrial product that is high - quality and focused on attracting premier tenants to Denton. Quality Industries, a supplier of metal fabricated products and services to Peterbilt, has moved in as the business park's first tenant. PRIOR ACTION/REVIEW (Council, Boards, Commissions) At the February 10, 2016 meeting, the Economic Development Partnership (EDP) board reviewed the request and recommended (9 -0) the conversion of the Chapter 380 Agreement to a tax abatement Agreement with an abatement of 60 -70% for 10 years. On April 7, 2015 the Denton City Council approved a 10 -year, 60 -75% Chapter 380 property tax rebate incentive (Ordinance 2015 -097). City of Denton Page 1 of 2 Printed on 2/26/2016 File M ID 16 -310, Version: 1 At their February 10, 2015, meeting, the Economic Development Partnership (EDP) board recommended approval of the Chapter 380 Incentive Agreement (9 -0). FISCAL INFORMATION Establishing the reinvestment zone has no fiscal impact. 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 F,XHIRITS 1. Ordinance Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Erica Sullivan Economic Development Analyst Development Services Department, Economic Development Division City of Denton Page 2 of 2 Printed on 2/26/2016 s: \I egahour d0CL1nients\ordinanees\16\wgb p reinvestment zone ordinance, doe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DEN'1_'ON,TEXAS DESIGNATING A CERTAIN AR- EA WITHIN THE CITY LIMITS OF DENTON AS WEST GATE BUSINESS PARK (WGBP INVESTMENTS, LTD.) REINVESTMENT ZONE NO. XIII FOR COMMER- CIAIANDUSTRIAL TAX ABATEMENT; ESTABLISHING THE BOUNDARIES OF SUCH ZONE; MAKING FINDINGS REQUIRED IN ACCORDANCE WITH CHAPTERS 311 AND 312 OF THE TEXAS "AX CODE; ORDAINING OTHER MATTERS RELATING THERETO; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas ("City" or "Municipality") desires to promote the development or redevelopment of a certain contiguous geographic area within its corporate city limits and its jurisdiction by the creation of a reinvestment zone for commercial/industrial tax abatement, as authorized by Tex. Tax Code Ch. 312 (referred to as the "Property Redevelopment and Tax Abatement Act" or the "Act"); and WHEREAS, an industry or business known as West Gate Business Park (WGBP Invest- ments), a Texas Limited Company has requested a tax abatement to develop an industrial busi- ness park located at 1500 North Western Boulevard, in Denton, Texas and build improvements within the area to be designated as Reinvestment Zone XIII; and WHEREAS, the City Council desires to create a proper economic and social environment to induce investment of private resources and productive business enterprises in this area of the City, which meets the criteria established under §312.202 of the Act, and to expand primary em- ployment or to attract major investment; and WHEREAS, a public hearing before the City Council was held at or after 6:30 p.m. on March 1, 2016, in the City Council Chambers of the City of Denton at 215 East McKinney Street in the City of Denton, such date being at least seven days after the date of publication of notice of such public hearing and the receipt of written notices of such public hearing by the presiding officer of each taxing unit that includes in its boundaries real property that is to be included in the proposed reinvestment zone, in accordance with §312.201 of the Act; and WHEREAS, such public hearing was held before the consideration and adoption of this ordinance; and WHEREAS, the City, at that hearing, invited any interested citizen or his representative to appear and offer testimony or evidence for or against the creation oil 'the reinvestment zone, the boundaries of the proposed reinvestment zone, whether all or part of the territory described in the notice calling the public hearing should be included in the proposed reinvestment zone, and the concept of tax abatement; and WHEREAS, in accordance with such public notice, all owners of property within the proposed reinvestment zone and all other taxing units and other interested persons were given the sAlegakour d0CL1ments\ordinanees\16\wgbp reinvestment zone ordinance.doc opportunity at such public hearing to protest the creation of the proposed reinvestment zone or the inclusion of their property in such reinvestment zone; and WHEREAS, on the 6th day of May, 2014, on or before the holding of the above- mentioned public hearing, the City Council passed Resolution No. 2014-016 establishing guide- lines and criteria governing tax abatement and incentive agreements and stating that the City of Denton elects to become eligible to participate in tax abatement, in accordance with Tex. Tax Code §312.002and such Policy is now in effect and was in effect prior to the public hearing; and WHEREAS, at the public hearing proponents and opponents of the reinvestment zone of- fered evidence in favor and against all matters relating to the creation of the reinvestment zone, and, after hearing this testimony and evidence, the City Council deems it in the public interest to create this reinvestment zone; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct. SECTION 2. For the purposes of this ordinance, the following terms and phrases shall have the following meanings ascribed to them: A. Improvements --- Improvements shall include, for the purpose of establishing eligibility under the Act, any activity at the location, including, but not limited to, new construction, recon- struction, renovation and repairs. B. Taxable Real Property — Taxable real property shall be as defined in the Texas Property Tax Code and shall not include personal property as defined in the Code. C. Tangible Personal Property — Tangible Personal Property shall be defined as business per- sonal property, excluding inventory and supplies. D. Base Year — The base year for determining increased value shall be the taxable real property value assessed the year in which the Tax Abatement Agreement is executed. SECTION 3. The City, through its City Council, after conducting the above - mentioned public hearing and having heard such evidence and testimony, makes the following findings and determinations based on the evidence and testimony presented to it: A. The public hearing on the adoption of the reinvestment zone has been properly called, held, and conducted in accordance with §312.201 of the Act and all other applicable laws, and that notice of such hearing has been published as required by law and delivered to the presiding officer of the governing body of each taxing unit that includes in its boundaries real property that is to be included in the proposed reinvestment zone as required by law; and Page 2 Olegahour documents\ordinances\ I 6\wgbl) reinvestment zone ordinance.doc B. It substantially impairs or arrests the sound growth of the municipality creating the zone or constitutes an economic or social liability in its present condition and use because of the presence of predominately open or undeveloped and, because of obsolete platting, deteriora- tion of structures or site improvements, or other factors. C. Prior to holding the public hearing, the City has adopted, by resolution, the guidelines and criteria governing tax abatement agreements by adopting a City of Denton 'Fax Abatement and Incentive Policy, as amended, and the City has elected to participate in tax abatement; and D. The City had jurisdiction to hold and conduct the public hearing on the creation of the pro- posed the reinvestment zone, pursuant to chapter 312 of the Act; and E. The boundaries of the reinvestment zone shall be the area described in the plat description attached hereto as Exhibit "A" and as shown on the plat attached hereto as Exhibit "B" and being approximately 22 acres situated on the South of West University Drive along Western Boulevard in the corporate limits of the City of Denton, Texas, such Exhibits "A" and "B" being incorporated and made a part of this ordinance as if written word for word herein; and F. The creation of the reinvestment zone for commercial/industrial tax abatement with the im- provements expected to be developed by WGBP Investments would be of benefit to the City and to the land to be included in the zone, with the boundaries as described in Exhibit "A," after the expiration of the tax abatement agreement entered into under §312.204 of the Act, and the improvements sought are feasible and practical; and G. The reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone, as set forth in §312.202 of the Act, since it is, "rea- sonably likely, as a result of the designation, to contribute to the retention or expansion of primary employment or to attract major investment in the zone that would be a benefit to the property and that would contribute to the economic development of the Municipality;" and 1-1. The reinvestment zone as defined in Exhibit "A" and shown on Exhibit "B" meets the criteria for the creation of a reinvestment zone as set forth in the Denton Policy for Tax Abatement and the expected improvements in the boundaries of the zone are expected to enhance signif- icantly the value of all taxable real property and tangible personal property located within the reinvestment zone. SECTION 4. pursuant to §312.201 of the Act, the City, through its City Council, hereby creates a reinvestment zone for commercial/industrial tax abatement encompassing only the area described by the plat description in Exhibit "A" attached hereto and as shown on Exhibit "B" attached hereto and such reinvestment zone is hereby designated and shall hereinafter be desig- nated as Reinvestment Zone No. XIII, City of' Trenton, Texas. SECTION S. Reinvestment Zone No. XIII shall be effective as of April 1, 2016, and shall terminate ten years from that date, on March 1, 2026, unless extended for an additional Page 3 sAlegakour docuiiients\ordiiianccs\16\wgbl) reinvestment zone ordinance,doe five-year term or unless earlier terminated by action of the City Council in accordance with §312.203 of the Act. SECTION 6. To be eligible for tax abatement, a commercial/industrial project shall: A. Be located wholly within the zone established herein; B. Meet the requirements of the Denton Tax Abatement and Incentive Policy; C. Not include property that is owned or leased by a member of the City Council of the City of Denton, or by a member of the Planning & Zoning Commission; D. Conform to the requirements of the City's zoning ordinance and all other applicable laws and regulations; and E. Have and maintain all land located within the designated zone, appraised at market value for tax purposes. SECTION 7. Written tax abatement agreements with property owners located within the zone shall provide the terms regarding duration of exemption and share of taxable real property and/or tangible personal property located on the real property for taxation as approved hereunder, as shown below: A. Duration of exemption from two years to ten years depending on the value of the structures and real property in accordance with the Denton 'Fax Abatement and Incentive Policy, begin- ning with and including January 1, 2016; and B. Share of taxes abated — from 60% to a maximum of 75% of taxes on the total value of ap- praised real property improvements and tangible personal property, excluding inventory and supplies, as more particularly described in the Tax Abatement Agreement between the City of Denton and WGBP Investments, which are added, provided, however, nothing herein shall prevent any other taxing unit that includes in its boundaries real property that is included in the reinvestment zone from entering into a tax abatement agreement with a different share of taxes abated on the total value of appraised improvements which are added, in accordance with the requirements of chapter 31.2 of the Act. SECTION 8. Any written agreements authorized under this ordinance must include pro- visions for: A. Listing the kind, number, and location of all proposed improvements of the property; B. Access to and authorizing the inspection of the property by municipal employees to ensure that the improvements or repairs are made in accordance with the specifications and condi- tions of the agreements; Page 4 Olegakour dOCLlinetits\or(litiaiiecs\16\wgbp reinvestment zone ord in ance.doc C. Limiting the uses of the property, consistent with the general purpose of encouraging devel- opment or redevelopment of the zone during the period that property tax exemptions are in effect; D. Recapturing of property tax revenues lost as a result of the agreement if the owner of the property fails to make the improvements or repairs as provided by the agreement; E. Containing each term agreed to by the owner of the property; F. Requiring the owner of the property to certify annually to the governing body of each taxing unit that the owner is in compliance with each applicable term of the agreement; G. Providing that the governing body of the municipality may cancel or modify the agreement if the property owner fails to comply with the agreement; 14. Contain any additional terms and conditions which the City Council deems are necessary, in accordance with §312.205 of the Act, and that are negotiated with the owner of the property. Provided, however, nothing herein shall prevent other taxing units, who include in their boundaries real property within the reinvestment zone, from negotiating terms and conditions that are different from any municipal tax abatement agreement, so long as the mandatory terms and conditions required by §312.205 of the Act are included. SECTION 9. The City Council further directs and designates the City Manager and the Director of Development Services as liaisons for communication with regard to all matters per- taining to the Zone, including, without limitation, the development of the amendment of the cur- rent Denton Tax Abatement and Incentive Policy if necessary, the negotiation of tax abatement agreements with industries, commercial enterprises, and other businesses eligible for tax abate- ment Linder the Tax Abatement and Incentive Policy and for communication with other taxing entities and the Economic Development Partnership Board. SECTION 10. All ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 11. If any section, paragraph, clause, or provision in this ordinance, or appli- cation thereof to any person or circumstance is held invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the re- maining portions of this ordinance. SECTION 12. It is hereby found, determined, and declared that a sufficient written no- tice of the date, place, hour, and subject of the meeting of the City Council at which this ordi- nance was adopted was posted and placed and conveniently accessible at all times to the general public at the City Hall of the City for the time required by law, preceding this meeting, as re- quired by the Open Meetings Act, Tex. Gov't Code Ch. 551, and that this meeting was open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered, and formally acted upon. The City Council further rati- Page 5 s:\Icgal\our docurnents\ordinances\ I 6\wgbp reinvestment zone ordinance.doc fies, approves, and confirms such written notice and contents posting thereof. The City Council further finds that a quorum was present at such meeting. SECTION 13. 'The contents of the notice of public hearing, which hearing was held be- fore the City Council and before the passage of this ordinance on March 1, 2016, the publication of said notice is hereby ratified, approved, and confirmed. SECTION 14. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the - day of _ 2016. ATTEST: JENNII','ER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 6 CHRIS WATTS, MAYOR s:Alegal \our dnc4unents \ordinances \16Awgbp reinvestment zone ordinan cc. doc . _r _ _ ;_ REINVESTMENT ZONE XIII WILL BE COMPOSED OF APPROXIMATELY 22.48 ACRES OF LAND OUT OF THE WILLIAM BRYAN SURVEY, ABSTRACT NO. 148, DENTON COUNTY, TEXAS. WES'T'ERN GATE BUSINESS PARK ADDITION IS GENERALLY LOCATED SOUTH OF WEST UNIVERSITY DRIVE ALONG WESTERN BOULEVARD. BEING LOTS 1, 2, AND 3, BLOCK A, OF WESTERN GATE BUSINESS PARK ADDITION, AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN DOC NUMBER 2015 -286, PLAT RECORDS OF DENTON COUNTY, TEXAS. Page 7 fill list, Rio JH I W71 3 i z OWN�m all w ip m oil ter, IP I pP r 4 Ir to I nip wl If IT Al IS IP91 11 In HUI -- 1 -------- I M Ow UH H H m I un! u ---- — ------ I Llij j 1 R 1 h"! m I I < '311 wft -0 m Ll IF b it Nk 41 �Tl Ll V5 1 4 N llifi�' -ij '141 , LIL o MC jA City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 16 -309, Version: 1 Agenda Information Sheet DEPARTMENT: DME CM/ ACM: Howard Martin, 349 -8232 Date: March 1, 2016 SUBJECT Consider approval of a concurrent ordinance with the Cities of Bryan, Garland and Greenville, Texas electing the provisions of Subchapter C -1 of Chapter 163, Texas Utilities Code, providing for alternative governance of the Texas Municipal Power Agency; providing findings of fact; defining the boundaries of the agency; designating the name of the agency; and designating the number, place, terms, and manner of appointment of directors of the agency; providing a savings clause; providing a severability clause; providing for retroactive ratification, confirmation and approval thereof, providing an effective date. BACKGROUND This concurrent ordinance is in furtherance of Texas statutory framework of SB 776, passed into law by the 84' Texas Legislature and effective September 1, 2015. Under that framework the four TMPA Member Cities (Denton, Greenville, Bryan and Garland) of the TMPA, who is subject Subchapter C -1 of Chapter 163, Texas Utilities Code; will adopt by concurrent ordinances provisions that establish rules for governance; boundaries; provisions for the appointment of Directors, and other rules and conventions necessary for the orderly function of the agency. OPTIONS I. Approve the Ordinance 2. Do not approve the Ordinance 3. Postpone the item to a future meeting 4. Table the matter RECOMMENDATION DME recommends that the PUB make a recommendation of approval. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The City of Denton Public Utility Board met on February 22, 2016 to consider a recommendation to the City Council on this matter. The PUB recommended by a vote of 5 to 0 that the Council approve the ordinance. 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 City of Denton Page 1 of 2 Printed on 2/26/2016 File #: ID 16 -309, Version: 1 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 1. Concurrent Ordinance Respectfully submitted: Mike Copeland Deputy City Attorney City of Denton Page 2 of 2 Printed on 2/26/2016 ORDINANCE NO. AN ORDINANCE ADOPTED CONCURRENTLY WITH THE CITIES OF BRYAN, GARLAND, AND GREENVILLE ELECTING THE PROVISIONS OF SUBCHAPTER C -1 OF CHAPTER 163, TEXAS UTILITIES CODE PROVIDING FOR ALTERNATE GOVERNANCE OF THE TEXAS MUNICIPAL POWER AGENCY; PROVIDING FINDINGS OF FACT; DEFINING THE BOUNDARIES OF THE AGENCY, DESIGNATING THE NAME OF THE AGENCY, AND DESIGNATING THE NUMBER, PLACE, TERMS, AND MANNER OF APPOINTMENT OF DIRECTORS OF THE AGENCY; PROVIDING A SAVINGS CLAUSE AND A SEVERABILITY CLAUSE; PROVIDING FOR RETROACTIVE RATIFICATION, CONFIRMATION AND APPROVAL THEREOF; PROVIDING AN EFFFECTIVE DATE. WHEREAS, in 1975 the cities of Bryan, Denton, Garland, and Greenville (the "Member Cities ") created a municipal power agency known as the Texas Municipal Power Agency (the "Agency ") by the adoption of concurrent ordinances in accordance with the law now codified, in part, as Subchapter C, Chapter 163, Texas Utilities Code; WHEREAS, each of the Member Cities is a "participating public entity" within the meaning of Subchapter C, Chapter 163, Texas Utilities Code; WHEREAS, SB 776, passed into law by the 84th Texas Legislature and effective September 1, 2015 provides for an alternate form of governance for municipal power agencies created under Subchapter C, Chapter 163, Texas Utilities Code if, by concurrent ordinances, the participating public entities of a municipal power agency elect to apply the provisions of Subchapter C -1 of Chapter 163, Texas Utilities Code to the agency as an alternative to Subchapter C; WHEREAS, by the adoption of concurrent ordinances, the Member Cities intend to apply the provisions of Subchapter C -1 to the Agency so that the Agency shall be hereafter subject to and controlled by the provisions of Subchapter C -1; NOW THEREFORE, BE IT ORDAINED BY THE CITY OF DENTON, TEXAS: SECTION 1. The City of Denton, together with the cities of Bryan, Garland, and Greenville, hereby elects that, on and after April 30, 2016 the Agency shall be governed by the provisions of Subchapter C -1, Chapter 163, Texas Utilities Code. SECTION 2. The boundaries of the Agency shall include all of the territory within or that may be hereafter added to the corporate limits of the cities of Bryan, Denton, Garland, and Greenville. SECTION 3. The agency shall continue to be known as the "Texas Municipal Power Agency." SECTION 4. The Agency shall be governed by a board of directors consisting of eight members. Each participating public entity may appoint two members to the board of directors by resolution or other official action of the participating public entity. Subject to the provisions of Section 163.078(k) and Section 5 of this Ordinance, the term of office for a member of the board of directors is two years. Vacancies in office shall be filled for the unexpired term by the participating public entity which originally filled such position. SECTION 5. The place and term of office (calculated from the effective date of this Ordinance) for each member of the board of directors is as follows: Place Number: Initial Term: Bryan 1 Two years Bryan 2 One year Denton 1 Two years Denton 2 One year Garland 1 Two years Garland 2 One year Greenville 1 Two years Greenville 2 One year SECTION 6. This Ordinance shall be retroactively ratified, confirmed and approved and become effective as of December 31, 2015. PASSED AND APPROVED this the day of , 2016. CITY OF DENTON, TEXAS CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY In APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY A f` /� City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Al 5-0016a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: March 1, 2016 SUBJECT Consider adoption of an ordinance establishing public hearing dates and authorizing the City Secretary to publish notice for April 5, 2016, and April 12, 2016, for annexation of an approximately 23.24 acre property generally located on the west side of Geesling Road, approximately 700 feet south of East University Drive (U.S. 380), within the Moreau Forrest Survey, Abstract No. 417, in Denton County, Texas. BACKGROUND Located within DH -12 of the 2010 Annexation Plan, the subject property was initially scheduled for annexation in 2013. Because the property was being used for agricultural purposes, however, the subject property received approval of a Non - Annexation Agreement (NAA) that delayed annexation until no sooner than August 1, 2020. The terms of the NAA required that the property remain in agricultural use or be subject to immediate annexation. In May 2015, a prospective purchaser of the subject property held a Pre - Application Conference (PAC) with the City's Development Review Committee to discuss development of the site with industrial uses. As part of the PAC, the prospective purchaser was informed that the proposed development would violate the terms of the NAA and trigger immediate annexation. In December 2015, the prospective purchaser closed on the property to become the new owner and subsequently submitted Preliminary Plat and Annexation applications to facilitate the industrial development. The purpose of this item is to establish public hearing dates for the annexation necessary for development of the site to proceed. The tentative schedule for this annexation is as follows: March 1, 2016 - City Council to consider an ordinance establishing public hearing dates and authorizing the publication of notice of the public hearings. April 5, 2016 - 1st Public Hearing April 12, 2016 - 2nd Public Hearing May 3, 2016 - 1st Reading of the Annexation Ordinance June 7, 2016 - 2nd Reading and Adoption of the Annexation Ordinance City of Denton Page 1 of 2 Printed on 2/26/2016 File #: Al 5-0016a, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) On April 6, 2010, City Council adopted a 3 -Year Annexation Plan for DH -12. On August 16, 2011, City Council approved a service plan for DH -12. On December 18, 2012, the City Council approved an NAA for the subject property through August 1, 2020 with terms that the property remain in agricultural use or be subject to immediate annexation. 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. Location Map 2. Zoning Map Respectfully submitted: Aimee Bissett Director of Development Services Prepared by: Mike Bell Senior Planner City of Denton Page 2 of 2 Printed on 2/26/2016 Site Location llof Denton and have beenrmade available to the p blicrbased on the Public Informaltion Act The City of Denton makes every effort to produce anld publish the most current andpac accurate formation possible. No —rant ess a expressed ormimpllied, are provided)ll Zoning Map EC -C ETJ NR-2 SITE A ETJ NR-6 W E s o ss o szaee, Parcels EC -C IC -E NRMU St t ,J EC -I NR-2 RD -5X -o�p,�,k Roads Development aerviices ., Gr S Date: 2/17/2016 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